Prayer was offered by the Right Reverend E. Alphonso Heyliger,
Senior Pastor, Ferguson Memorial Baptist Church, Dunbar, West
Virginia.
Pending the reading of the Journal of Thursday, February 6,
2003,
On motion of Senator McKenzie, the Journal was approved and
the further reading thereof dispensed with.
The Senate proceeded to the second order of business and the
introduction of guests.
Senator Tomblin (Mr. President) presented a communication from
the Court of Claims, submitting its annual report as required by
chapter fourteen, article two, section twenty-five of the code of
West Virginia.
Which report was received and filed with the Clerk.
The Senate proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption ofHouse Concurrent Resolution No. 16--Requesting the West
Virginia Division of Highways to name entire portion of the West
Virginia section of I-73/74, the King Coal Highway, the "Nick Joe
Rahall II King Coal Highway"; the intersection of I-73/74 and the
Coalfield Expressway the "United States Senator Robert C. Byrd King
Coal Highway and Coalfield Expressway Intersection"; and the
intersection of I-73/74, the King Coal Highway and Route 123 near
the Mercer County Airport the "Nelson Walker Intersection".
Whereas, Interstate I-73/74 owes its existence to the hard
work and efforts of all of our congressional delegation and the
many citizens who joined in that effort; and
Whereas, One person, Nick Joe Rahall II of Beckley, Raleigh
County, having been first elected to the U. S. House of
Representatives in 1976 as the youngest member in the 95th Congress
and reelected thirteen times to the office, has had the foresight,
skills and intelligence to provide steadfast and effective
leadership in the effort to improve the lives of people living and
working in the southern coalfields of West Virginia; and
Whereas, Congressman Nick Joe Rahall II is a distinguished
member of the Committee on Transportation and Infrastructure of the
U. S. Congress where he has fought for, authored and championed the cause of improved transportation for his home state and especially
the hard-working people of the southern coalfields; and
Whereas, One person, Congressman Nick Joe Rahall II, saw to it
that when his district needed to be a part of a new and exciting
interstate highway, he was there, as always, to ensure that the
funding was approved in the House of Representatives for the
construction of I-73/74, the King Coal Highway, through southern
West Virginia; and
Whereas, United States Senator Robert C. Byrd of Sophia,
Raleigh County, has served longer in the U. S. Senate than anyone
else in West Virginia's history; and
Whereas, United States Senator Robert C. Byrd has held more
leadership positions and has cast more votes in the U. S. Senate
than has any other senator of any party in Senate history; and
Whereas, We in the Legislature and all of the citizens of this
state recognize his untiring efforts on behalf of the State of West
Virginia; not only has he brought pride to the state with staunch
advocacy of the Congress as an equal branch of our federal
government against all efforts to erode that power, he has also
enriched all of our lives through ensuring significant federal
appropriations for needed improvements in this state and the
genuine honesty of his character and leadership; and
Whereas, The words "mission accomplished" and "job well done"
were echoing in the ears of all of the many board members, supporters, office holders, state highway staffs and friends
involved in the I-73/74 interstate highway drive when the
interstate became a reality; and
Whereas, Nelson Walker, President of the King Coal Highway
Authority, led the effort of these groups as the unpaid volunteer
executive director of I-73/74 Corridor Association by organizing
civic leaders from Michigan, Ohio, West Virginia, Virginia, North
Carolina and South Carolina in this very successful campaign; and
Whereas, Nelson Walker has been married to Phyllis Walker for
twenty-three years, has four children and thirteen grandchildren
and has served in important public and private capacities,
including serving as Vice President of Operations of Bluefield
Supply Company, member of the West Virginia Economic Development
Council, past mayor of Bluefield and as former Executive Director
of the Greater Bluefield Chamber of Commerce; and
Whereas, It is not only right and just to honor the efforts of
Congressman Nick Joe Rahall II for his dedication to the people of
his home state, in general, and for his work in bringing the King
Coal Highway into existence, in particular, by formally naming the
West Virginia section of I-73/74, the King Coal Highway, the "Nick
Joe Rahall II King Coal Highway"; to honor the efforts of United
States Senator Robert C. Byrd for his dedication to the people of
his home state, it is one of the few things we can do to thank him
by formally naming the intersection of I-73/74 and the Coalfield Expressway the "United States Senator Robert C. Byrd Coalfield
Expressway Intersection"; and to honor the selfless efforts of
Nelson Walker by formally naming the intersection of I-73/74, the
King Coal Highway, and Route 123 near the Mercer County Airport the
"Nelson Walker Intersection"; therefore, be itResolved by the Legislature of West Virginia: That the Legislature hereby requests the West Virginia
Division of Highways to name the West Virginia section of I-73/74,
the King Coal Highway, the "Nick Joe Rahall II King Coal Highway";
the intersection of I-73/74 and the Coalfield Expressway the
"United States Senator Robert C. Byrd Coalfield Expressway
Intersection"; and the intersection of I-73/74, the King Coal
Highway, and Route 123 near the Mercer County Airport the "Nelson
Walker Intersection"; and, be it Further Resolved, That the Clerk of the House of Delegates is
hereby directed to forward a copy of this resolution to the
Commissioner of the Division of Highways, Congressman Nick Joe
Rahall II, U. S. Senator Robert C. Byrd and Nelson Walker.
Referred to the Committee on Transportation.

Executive Communications

The following communication from His Excellency, the Governor,
was reported by the Clerk:

STATE OF WEST VIRGINIA

OFFICE OF THE GOVERNOR

CHARLESTON

February 6, 2003

Senate Executive Message No. 3
The Honorable Earl Ray Tomblin
President, West Virginia Senate
State Capitol
Charleston, West Virginia
Dear Mr. President:
The Pension Liability Redemption Act, established in West
Virginia Code §12-8-1, et seq., provides for the issuance of
certain bonds in an amount not to exceed three billion nine hundred
million dollars for the purpose of redeeming certain of the
unfunded actuarial accrued liability of certain pension systems in
the State of West Virginia, namely: (i) The Teachers Retirement
System established in West Virginia Code §18-7A-1, et seq.; (ii)
the Death, Disability and Retirement Fund of the West Virginia
Department of Public Safety created by West Virginia Code §15-2-1,
et seq.; and (iii) the Judicial Retirement System established in
West Virginia Code §51-9-1, et seq.
Section 12-8-5 provides that the Governor request the West
Virginia Legislature to prepare and consider a resolution
authorizing the issuance of the bonds. In addition, in that
request, the maximum costs associated with the issuance of the
bonds must be specified.
Accordingly, given the current favorable market conditions and
the pressing need to adequately fund several of the state's
unfunded pension systems, I hereby request that the Legislature
prepare and consider a resolution authorizing the issuance of the
pension obligation bonds provided for in the Pension Liability
Redemption Act. The issuance of the bonds will enable the state to
redeem a previous liability by funding a portion of the aggregate
of the unfunded actuarial accrued liabilities of the Judicial
Retirement System, the Death, Disability and Retirement Fund and
the Teachers Retirement Fund.
The maximum costs associated with the issuance of the bonds,
excluding fees for bond insurance, credit enhancement and liquidity
facilities, plus underwriter's discount and any other costs
associated with the issuance, shall not exceed, in the aggregate,
the sum of one percent of the aggregate principal amount of bonds
issued.
I thank you for your prompt consideration of this request.
Very truly yours,
Bob Wise,Governor.
Which communication was received and referred to the Committee
on Finance.
The Senate proceeded to the fourth order of business.
Senator Plymale, from the Committee on Education, submitted the following report, which was received:
Your Committee on Education has had under considerationSenate Bill No. 180, Providing for school construction on cash
basis.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended; but under the original double committee reference
first be referred to the Committee on Finance.
Respectfully submitted,
Robert H. Plymale,Chair.
The bill, under the original double committee reference, was
then referred to the Committee on Finance, with amendments from the
Committee on Education pending.
Senator Plymale, from the Committee on Education, submitted
the following report, which was received:
Your Committee on Education has had under considerationSenate Bill No. 206, Authorizing aides to supervise students
in in-school suspensions; limitation.
And reports back a committee substitute for same with the
following title:Com. Sub. for Senate Bill No. 206 (originating in the
Committee on Education)--A Bill to amend and reenact section eight,
article five, chapter eighteen-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to
authorizing aides to supervise students who are undergoing in-
school suspension.
With the recommendation that the committee substitute do pass;
but under the original double committee reference first be referred
to the Committee on Finance.
Respectfully submitted,
Robert H. Plymale,Chair. At the request of Senator Helmick, as chair of the Committee
on Finance, unanimous consent was granted to dispense with the
second committee reference of the bill contained in the foregoing
report from the Committee on Education. Senator Prezioso, from the Committee on Health and Human
Resources, submitted the following report, which was received:
Your Committee on Health and Human Resources has had under
consideration Senate Bill No. 279, Authorizing division of human services to
promulgate legislative rule relating to day care centers licensing.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended; but under the original double committee reference
first be referred to the Committee on the Judiciary.
Respectfully submitted,
Roman W. Prezioso, Jr.,Chair.
The bill, under the original double committee reference, was
then referred to the Committee on the Judiciary, with an amendment
from the Committee on Health and Human Resources pending.
The Senate proceeded to the sixth order of business.
On motions for leave, severally made, the following bills were
introduced, read by their titles, and referred to the appropriate
committees:By Senators Sharpe and Ross:Senate Bill No. 472--A Bill to amend and reenact sections two,
eighteen and twenty-eight, article eight, chapter sixty of the code
of West Virginia, one thousand nine hundred thirty-one, as amended,
all relating to redefining the term "wine" to exclude certain
products or beverages; redefining the terms "distributor" and "wine
specialty shop" to include sales of dessert wines which are not
fortified, marsala, sake and vermouth wines; amending the
revocation or suspension of license provision to impose a civil
monetary penalty on licensees for violation of any provision of
this article or any rule or order promulgated by the commissioner;
imposing a wine label registration fee of five dollars for every
registered wine supplier and setting the wine label registration
fee for farm wineries at three dollars; and establishing that wine
label registrations and fees are to be filed with the commissioner.
Referred to the Committee on the Judiciary; and then to the
Committee on Finance.By Senators Prezioso, Unger, Caldwell and Hunter:Senate Bill No. 473--A Bill to amend and reenact section five,
article nine, chapter eighteen-b of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to the
incremental salary increase for classified employees of higher
education; and removing the cap on the number of years of service
that may be used in calculating the increase.
Referred to the Committee on Education; and then to the
Committee on Finance.By Senators Prezioso, Unger, Minear, Caldwell and Hunter:Senate Bill No. 474--A Bill to amend and reenact section ten,
article nine, chapter eighteen-b of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to
permitting faculty eligible to accrue sick leave to participate in
the catastrophic leave bank.
Referred to the Committee on Education; and then to the
Committee on Finance.By Senators Minard, Jenkins and Minear:Senate Bill No. 475--A Bill to repeal section twenty-seven,
article ten, chapter thirty-three of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; to repeal sections
fifteen through forty-two, inclusive, article twenty-four of said chapter; to amended and reenact sections one, two, three, four,
ten, eleven, thirteen, fourteen, eighteen, nineteen-a, twenty-six,
twenty-eight, twenty-nine, thirty, thirty-six, thirty-eight and
thirty-nine, article ten of said chapter; to further amend said
article by adding thereto ten new sections, designated sections
four-a, four-b, four-c, four-d, four-e, twenty-six-a, twenty-six-b,
twenty-six-c, twenty-six-d and forty; and to amend and reenact
section fourteen, article twenty-four of said chapter, all relating
to the rehabilitation and liquidation of insurers subject to the
regulatory authority of the West Virginia insurance commissioner;
revising delinquency proceedings; clarifying what parties will be
affected upon the effective date of the revisions; expanding the
liquidators' powers; expediting appeals; modifying current state
law relative to liquidation proceedings so as to create conformity
with recent federal case law; and making numerous technical
changes.
Referred to the Committee on Banking and Insurance; and then
to the Committee on Finance.By Senators Minard, Jenkins, Minear and Sharpe:Senate Bill No. 476--A Bill to amend and reenact article
thirty-one, chapter thirty-three of the code of West Virginia one
thousand nine hundred thirty-one, as amended, relating to captive
insurance companies; providing for sponsored cell captives; and
generally modernizing the captive insurance law.
Referred to the Committee on Banking and Insurance; and then
to the Committee on Finance.By Senator Bailey:Senate Bill No. 477--A Bill to amend and reenact sections
twelve-b and twenty-two, article three, chapter twenty-nine of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, all relating to transferring ten percent of the fees
collected by the state fire marshal to general revenue; and
transferring a portion of the insurance company tax to the special
revenue account of the state fire marshal.
Referred to the Committee on Finance.By Senators Rowe and McCabe:Senate Bill No. 478--A Bill to amend article fifteen, chapter
eleven of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, by adding thereto a new section, designated
section nine-h; to amend and reenact section thirteen, article
sixteen of said chapter; to amend and reenact section three,
article seventeen of said chapter; to amend and reenact section
two, article nineteen of said chapter; to amend and reenact section
seventeen, article three-a, chapter sixty of said code; and to
amend and reenact section four, article eight of said chapter, all
relating to enacting the "Tax Free Family Meal Act of 2003";
eliminating the sales tax on packaged food and fresh-grown food
sold for human consumption off the premises where sold; making the elimination of grocery tax revenue neutral by increasing other
taxes on certain products; increasing the tax on beer to twelve
percent of the wholesale price; establishing a container tax on
containers of nonintoxicating beer; exempting the beer tax on beer
consumed or sold at retail at the premises of a brewpub; increasing
the excise tax on cigarettes sold by the pack to twenty-eight
percent of the wholesale price; increasing the wholesale tax rate
on other tobacco products to twenty-eight percent of the wholesale
price; creating a wholesale tax on soft drinks tax for liquids,
syrups and dry mixtures at the rate of ten percent of the wholesale
prices; providing for a wholesale markup of liquor prices in order
to produce the general revenue fund at least nineteen million, nine
hundred fifty thousand dollars; setting the rate of the liter tax
on wine at ten percent of the wholesale price; and providing for
the tax commissioner to promulgate rules for the implementation of
the articles of the act.
Referred to the Committee on Finance.
The Senate proceeded to the eighth order of business. Eng. Com. Sub. for Senate Joint Resolution No. 6, Proposing
amendment to Constitution designated Legislative Compensation
Reform Amendment.
On third reading, coming up in regular order, was read a third
time and put upon its adoption.
On the adoption of the resolution, the yeas were: Bailey, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Helmick, Hunter, Jenkins, Kessler, Love, McCabe, Minard, Oliverio,
Plymale, Prezioso, Ross, Sharpe, Snyder, Unger, Weeks, White and
Tomblin (Mr. President)--26.
The nays were: Boley, Guills, Harrison, McKenzie, Minear,
Rowe, Smith and Sprouse--8.
Absent: None.
On motion of Senator Helmick, the following amendment to the
title of the resolution was reported by the Clerk and adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:Eng. Com. Sub. for Senate Joint Resolution No. 6--Proposing an
amendment to the Constitution of the State of West Virginia,
amending section thirty-three, article VI thereof, relating to
legislative compensation reform; numbering and designating such
proposed amendment; and providing a summarized statement of the
purpose of such proposed amendment.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the resolution
(Eng. Com. Sub. for S. J. R. No. 6) adopted, as follows:Eng. Com. Sub. for Senate Joint Resolution No. 6--Proposing an
amendment to the Constitution of the State of West Virginia,
amending section thirty-three, article VI thereof, relating to
legislative compensation reform; numbering and designating such proposed amendment; and providing a summarized statement of the
purpose of such proposed amendment.Resolved by the Legislature of West Virginia, two thirds of
the members elected to each house agreeing thereto: That the question of ratification or rejection of an amendment
to the Constitution of the State of West Virginia be submitted to
the voters of the state at the next general election to be held in
the year two thousand four, which proposed amendment is that
section thirty-three, article VI thereof, be amended to read as
follows:ARTICLE VI. THE LEGISLATURE.§33. Compensation and expenses of members. Members of the Legislature shall receive suchthe increases in
compensation in connection with the performance of their respective
duties as members of the Legislature and suchincreases in
allowances for travel and other expenses in connection therewith as
shall be (1) established in a resolution submitted to the
Legislaturethat are determined by the citizens legislative
compensation commission. hereinafter created and (2) thereafter
enacted into general law by the Legislature at a regular session
thereof, subject to such requirements and conditions as shall be
prescribed in such general law. The Legislature may in any such
general law reduce but shall not increase any item of compensation
or expense allowance established in such resolution. All voting on the floor of both houses on the question of passage of any such
general law shall be by yeas and nays to be entered on the journals
The citizens legislative compensation commission is hereby
createdcontinued. It shall be composed of seven members who have
been residents of this state for at least ten years prior to the
date of appointment, to be appointed by the governor, within twenty
days after ratification of this amendment, no more than four of
whom shall be members of the same political party. The members
shall be broadly representative of the public at large. Members of
the Legislature and officers and employees of the state or of any
county, municipality or other governmental unit of the state shall
are not be eligible for appointment to or to serve as members of
the commission. Each member of the commission shall serve for a
term of seven years. , except of the members first appointed, one
member shall be appointed for a term of one year, and one each for
terms ending two, three, four, five, six and seven years after the
date of appointment. As the term of each member first appointed
expires, a successor shall be appointed for a seven-year term. Any
member may be reappointed for any number of terms and any vacancy
shall be filled by the governor for the unexpired term. Any member
of the commission may be removed by the governor prior to the
expiration of suchthe member's term for official misconduct,
incompetency or neglect of duty. The governor shall designate one
member of the commission as chairmanchairperson. The members of the commission shall serve without compensation but shall beare
entitled to be reimbursed for all reasonable and necessary expenses
actually incurred in the performance of their duties as such
members.
The commission shallmay meet as often as may beis determined
necessary by the chairperson and shall within fifteen days after
the beginning of the regular session of the Legislature in the year
one thousand nine hundred seventy-one and within fifteen days after
the beginning of the regular session in each fourth year thereafter
submit by resolution to the Legislature its determination of
compensation and expense allowances, which resolution must be
concurred in by at least four members of the commissionmeet on the
second Tuesday of January in the year two thousand six and on the
second Tuesday of January every fourth year after that. Within ten
days of determining any increase in the compensation, increase in
allowances for travel and other expenses or additional days for
which members of the Legislature shall be compensated, the
commission shall file the determination with the office of the
secretary of state and shall forward copies to the governor, the
speaker of the House of Delegates and the president of the Senate.
The commission may provide for an increase in the compensation or
allowance for expenses of members of the Legislature to become
effective annually over a period of not more than four consecutive
years.
Notwithstanding any other provision of this constitution, such
compensation and expense allowances as may be provided for by any
such general law the Commission shall be paid on and after the
effective date of such general lawthe increased compensation,
increased allowance for expenses or increased days for which
members of the Legislature are to be compensated become effective
on the first day of the month following the month in which the
determination of increase is filed with the secretary of state:
Provided, That increases to be made over a period of years become
effective on the dates authorized in the determination filed with
the office of the secretary of state. Until the first such general
lawdetermination becomes effective, the provisions of this section
in effect immediately prior to the ratification of this amendment
shall continue to govern.

__________

Resolved further, That in accordance with the provisions of
article eleven, chapter three of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, such proposed
amendment is hereby numbered "Amendment No. 1" and designated as
the "Legislative Compensation Reform Amendment" and the purpose of
the proposed amendment is summarized as follows: "The purpose of
this amendment is to provide that the Citizens Legislative
Compensation Commission determines increases in pay and allowances
for travel and other expenses and any additional days' compensation will be paid for members of the Legislature and removes authority
of the Legislature to vote to increase or decrease the compensation
and allowance for expenses of the members."Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein. Eng. Com. Sub. for Com. Sub. for Senate Bill No. 170,
Requiring informed consent for abortion; other provisions.
On third reading, coming up in regular order, was reported by
the Clerk.
Senator Snyder then moved to amend the bill on third reading.
On this question, the yeas were: Hunter, Minear and
Snyder--3.
The nays were: Bailey, Boley, Bowman, Caldwell, Chafin, Deem,
Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick,
Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio,
Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Sprouse, Unger,
Weeks, White and Tomblin (Mr. President)--31.
Absent: None.
So, two thirds of all the members present and voting not
having voted in the affirmative, the President declared Senator
Snyder's aforestated motion had not prevailed.
Engrossed Committee Substitute for Committee Substitute for
Senate Bill No. 170 was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross,
Sharpe, Smith, Sprouse, Unger, Weeks, White and Tomblin (Mr.
President)--31.
The nays were: McCabe, Rowe and Snyder--3.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for Com. Sub. for S. B. No. 170) passed with its title.Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein. Eng. Senate Bill No. 342, Limiting time driver's license may
be issued to certain noncitizens.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 342) passed with its title.Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein. Eng. Senate Bill No. 381, Adding professional surveyors to
professional limited liability companies.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 381) passed with its title.Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein. Eng. Senate Bill No. 388, Modifying requirements for titling
and registration of imported vehicles.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 388) passed with its title.Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein. Eng. Senate Bill No. 390, Removing requirement social security
number appear on commercial driver's license.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe,
Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
The nays were: Minear--1.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 390) passed with its title.Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein. Eng. Senate Bill No. 414, Authorizing real estate commission
to enter into license reciprocity agreements with other states.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 414) passed with its title.Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein. Eng. Senate Bill No. 447, Allowing reciprocal agreements with
Ohio regarding hunting and fishing.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 447) passed with its title.Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein. Eng. Com. Sub. for House Bill No. 2121, Establishing the
"All-Terrain Vehicle Safety Act" and the reasons therefor.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Chafin, Deem, Dempsey, Edgell, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio,
Plymale, Prezioso, Ross, Rowe, Sharpe, Snyder, Sprouse, Unger,
White and Tomblin (Mr. President)--28.
The nays were: Caldwell, Facemyer, Fanning, Minear, Smith and
Weeks--6.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2121) passed.
At the request of Senator Ross, as chair of the Committee on
Transportation, and by unanimous consent, the unreported
Transportation committee amendment to the title of the bill was
withdrawn.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:Eng. Com. Sub. for House Bill No. 2121--A Bill to amend the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto a new chapter, designated chapter
seventeen-f, relating to regulation of all-terrain vehicles
generally; definitions; establishing prohibited acts by the
operator or rider of all-terrain vehicles; requiring spark
arresters and mufflers on all-terrain vehicles; exception for farm or commercial use; requiring commissioner of division of motor
vehicles to offer safety training to adults and minors; requiring
minors to complete safety training to operate all-terrain vehicles
after a date certain; establishing effective dates clarifying that
adults must possess a valid driver's license to operate all-terrain
vehicles; granting authority over all-terrain vehicle use in
certain areas to governing or operating bodies thereof; giving
municipalities and counties authority to regulate use of all-
terrain vehicles within their boundaries; exceptions; requiring
helmets be worn by minors; requiring all-terrain vehicle rental
dealers to provide or offer helmets; offenses; and penalties.Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
The Senate proceeded to the ninth order of business. Com. Sub. for Senate Bill No. 204, Relating to involuntary
commitment generally.
On second reading, coming up in regular order, was read a
second time and ordered to engrossment and third reading. Senate Bill No. 336, Relating to uniform application forms for
credentialing, recredentialing and updating information for health
care practitioners.
On second reading, coming up in regular order, was read a
second time and ordered to engrossment and third reading. Senate Bill No. 356, Relating to insurance company holding systems and federal Gramm-Leach-Bliley Act.
On second reading, coming up in regular order, was read a
second time.
The following amendments to the bill, from the Committee on
Banking and Insurance, were reported by the Clerk, considered
simultaneously, and adopted:
On page seven, section two-a, line thirty-five, by striking
out the word "and";
On page seven, section two-a, line thirty-eight, after the
word "section" by changing the period to a semicolon and inserting
the word "and";
On page seven, section two-a, lines thirty-nine through forty-
four, by striking out all of subsection (b) and inserting in lieu
thereof the following:
(13) Organizing or acquiring one or more subsidiaries that are
depository institutions.;
On page seven, section two-a, line forty-five, by striking out
"(c)" and inserting in lieu thereof "(b)";
And by relettering the remaining subsections;
And,
On page ten, section two-a, line one hundred five, after "(a)"
by striking out the comma and the words "(b) or (c)" and inserting
in lieu thereof the words "or (b)".
The bill (S. B. No. 356), as amended, was then ordered to engrossment and third reading. Senate Bill No. 358, Relating to redomestication of domestic
insurance companies.
On second reading, coming up in regular order, was read a
second time and ordered to engrossment and third reading. Com. Sub. for Senate Bill No. 424, Authorizing commissioner of
corrections to consent to transfer of convicted offenders under
federal treaty; informed consent.
On second reading, coming up in regular order, was read a
second time and ordered to engrossment and third reading. Eng. Com. Sub. for House Bill No. 2122, Relating to medical
professional liability generally.
On second reading, coming up in regular order, was read a
second time.
At the request of Senator Kessler, as chair of the Committee
on the Judiciary, and by unanimous consent, the unreported
Judiciary committee amendment to the bill was withdrawn.
At the request of Senator Helmick, as chair of the Committee
on Finance, unanimous consent being granted, the unreported Finance
committee amendment to the bill was withdrawn.
On motion of Senator Helmick, the following amendment to the
bill was reported by the Clerk:
On page four, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That section two, article eleven-a, chapter four of the code
of West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted; that chapter eleven of said code be
amended by adding thereto a new article, designated article
thirteen-t; that section fourteen, article twelve-b, chapter
twenty-nine of said code be amended and reenacted; that said
chapter be further amended by adding thereto a new article,
designated article twelve-c; that section fourteen, article three,
chapter thirty of said code be amended and reenacted; that section
twelve-a, article fourteen of said chapter be amended and
reenacted; that article two, chapter thirty-three of said code be
amended by adding thereto a new section, designated section nine-a;
that section fifteen-a, article four of said chapter be amended and
reenacted; that section two, article twenty-b of said chapter be
amended and reenacted; that said article be further amended by
adding thereto two new sections, designated sections one-a and
three-a; that sections one through eleven, inclusive, article
twenty-f of said chapter be amended and reenacted; that said
article be further amended by adding thereto a new section,
designated section one-a; that section twenty-four, article twenty-
five-a of said chapter be amended and reenacted; that section
twenty-six, article twenty-five-d of said chapter be amended and
reenacted; that section four, article ten, chapter thirty-eight of
said code be amended and reenacted; that sections one, two, three, six, seven, eight, nine and ten, article seven-b, chapter fifty-
five of said code be amended and reenacted; and that said article
be further amended by adding thereto three new sections, designated
sections nine-a, nine-b and nine-c, all to read as follows:

(a) The Legislature finds and declares that certain dedicated
revenues should be preserved in trust for the purpose of
stabilizing the state's health related programs and delivery
systems. It further finds and declares that these dedicated
revenues should also be preserved in trust for the purpose of
educating the public about the health risks associated with tobacco
usage and for the establishment ofestablishing a program designed
to reduce and stop the use of tobacco by the citizens of this state
and in particular by teenagers.
(b) There is hereby created a special account in the state
treasury, designated the "West Virginia Tobacco Settlement Medical
Trust Fund", which shall be an interest-bearing account and may be
invested in the manner permitted by section nine, article six,
chapter twelve of this code, with the interest income a proper
credit to the fund. Unless contrary to federal law, fifty percent of all revenues received pursuant to the master settlement
agreement shall be deposited in this fund. Funds paid into the
account may also be derived from the following sources:
(1) All interest or return on investment accruing to the fund;
(2) Any gifts, grants, bequests, transfers or donations which
may be received from any governmental entity or unit or any person,
firm, foundation or corporation; and
(3) Any appropriations by the Legislature which may be made
for this purpose; and
_____(4) Any funds or accrued interest remaining in the board of
risk and insurance management physicians' mutual insurance company
account created pursuant to section seven, article twenty-f,
chapter thirty-three of this code on or after first day of
September, two thousand four.
_____(c) The moneys from the principal in the trust fund may not be
expended for any purpose, except that on the first day of March,
two thousand three, the treasurer shall transfer twenty-four
million dollars from the trust fund as the Legislature determines
necessary to the board of risk and insurance management physicians'
mutual insurance company account created by section seven, article
twenty-f, chapter thirty-three of this code.

The Legislature finds that the retention of physicians
practicing in this state is in the public interest and promotes the
general welfare of the people of this state. The Legislature
further finds that the promotion of stable and affordable medical
malpractice liability tail insurance premium rates will induce
retention of physicians practicing in this state.
In order to effectively decrease the cost of medical
malpractice liability tail insurance premiums paid in this state on
physicians' services, there is hereby provided a tax credit for
certain medical malpractice liability tail insurance premiums paid.

§11-13T-2. Definitions.

(a) General. -- When used in this article, or in the
administration of this article, terms defined in subsection (b) of
this section have the meanings ascribed to them by this section,
unless a different meaning is clearly required by the context in
which the term is used.
(b) Terms defined. --
(1) "Claims made malpractice insurance policy" means a medical
malpractice liability insurance policy that covers claims which are
reported during the policy period, meet the provisions specified by
the policy and are for an incident which occurred during the policy
period or occurred prior to the policy period as is specified by
the policy.
(2) "Eligible taxpayer" means any person subject to tax under
section sixteen, article twenty-seven of this chapter or a
physician who is a partner, member, shareholder or employee of an
eligible taxpayer.
(3) "Eligible taxpayer organization" means a partnership,
limited liability company or corporation that is an eligible
taxpayer.
(4) "Payor" means a natural person who is a partner, member,
shareholder or owner, in whole or in part, of an eligible taxpayer
organization and who pays tail insurance premiums for or on behalf
of the eligible taxpayer organization.
(5) "Person" means and includes any natural person,
corporation, limited liability company, trust or partnership.
(6) "Physicians' services" means health care providers'
services taxable under section sixteen, article twenty-seven of
this chapter performed in this state by physicians licensed by the
state board of medicine or the state board of osteopathic medicine.
(7) "Tail insurance" means insurance which covers an eligible
taxpayer insured once a claims made malpractice insurance policy is
canceled, not renewed or terminated and which covers claims made or
asserted after such cancellation or termination for acts relating
to the provision of physicians' services by the eligible taxpayer
occurring during the period the prior malpractice insurance was in
effect.
(8) "Tail insurance premium" means insurance coverage premiums
paid by an eligible taxpayer or payor during the taxable year for
tail insurance.
(9) "Tail liability" means the medical malpractice liability
of an eligible taxpayer insured that results from a claim asserted
subsequent to cancellation, nonrenewal or termination of a claims
made malpractice insurance policy for acts relating to the
provision of physicians' services by the eligible taxpayer
occurring during the period when the prior malpractice insurance
was in effect.

§11-13T-3. Eligibility for tax credits; creation of the credit.

There shall be allowed to every eligible taxpayer a credit
against the tax payable under section sixteen, article twenty-seven
of this chapter. The amount of this credit shall be determined and
applied as provided in this article.

§11-13T-4. Amount of credit allowed.

(a) Allowance. -- The amount of annual credit allowable under
this article to an eligible taxpayer shall be equal to ten percent
of the cost of the annual tail insurance premium paid by the
eligible taxpayer or payor during the taxable year. This credit
may be taken for such tail insurance premiums paid during any
taxable year beginning on or after the first day of January, two
thousand two, and ending on or before the thirty-first day of
December, two thousand four.
(b) Exclusions. -- No credit shall be allowed for any tail
insurance premium paid by or on behalf of an eligible taxpayer
employed by this state, its agencies or subdivisions. No credit
shall be allowed for any tail insurance premium paid by or on
behalf of an eligible taxpayer or an eligible taxpayer organization
or a payor pursuant to insurance coverage provided under article
twelve or twelve-b, chapter twenty-nine of this code. No credit
shall be allowed for any tail insurance premium paid before the
first day of January, two thousand two, or paid after the thirty-
first day of December, two thousand four.

§11-13T-5. Unused credit carry forward, credit forfeiture.

If any credit remains after application of the credit against
tax for the current taxable year under this article, the amount
thereof is carried forward to each ensuing tax year until used or
until the thirty-first day of December, two thousand four,
whichever occurs first. If any unused credit remains after the
thirty-first day of December, two thousand four, the amount thereof
is forfeited. No carryback to a prior taxable year is allowed for
the amount of any unused portion of this credit.

§11-13T-6. Application of credit; schedules; estimated taxes.

(a) The credit allowed under this article shall be applied
against the tax payable under section sixteen, article twenty-seven
of this chapter for the taxable year when the tail insurance
premium was paid.
(b) To assert this credit against tax, the eligible taxpayer
shall prepare and file with its annual tax return filed under
article twenty-seven of this chapter, and for information purposes,
a schedule showing the tail insurance premium amount paid for the
taxable year, the amount of credit allowed under this article, the
taxes against which the credit is being applied and such other
information that the tax commissioner may require. This annual
schedule shall set forth the information and be in the form
prescribed by the tax commissioner.
(c) An eligible taxpayer may consider the amount of credit
allowed under this article when determining the eligible taxpayer's
liability under article twenty-seven of this chapter for periodic
payments of estimated tax for the taxable year, in accordance with
the procedures and requirements prescribed by the tax commissioner.
The annual total tax liability and total tax credit allowed under
this article are subject to adjustment and reconciliation pursuant
to the filing of the annual schedule required by subsection (b) of
this section.

§11-13T-7. Computation and application of credit.

(a) Credit resulting from tail insurance premium directly paid
by persons who pay the tax imposed by section sixteen, article
twenty-seven of this chapter. -- The annual credit allowable under
this article for eligible taxpayers other than payors described in
subsection (b) of this section shall be applied as a credit against the eligible taxpayer's state tax liability determined under
section sixteen, article twenty-seven of this chapter, determined
after application of all other allowable credits and exemptions.
(b) Credit for tail insurance premiums directly paid by
partners, members or shareholders of partnerships, limited
liability companies or corporations for or on behalf of such
organizations; application of credit.
(1) Qualification for credit. -- Tail insurance premiums paid
by a payor qualify for tax credit under this article, provided that
such payments are made for tail insurance to cover tail liability
claims arising out of or resulting from physicians' services
provided by a physician while practicing in service to or under the
organizational identity of an eligible taxpayer organization or as
an employee of such eligible taxpayer organization where such tail
insurance covers the tail liability of:
(A) The eligible taxpayer organization; or
(B) One or more physicians practicing or previously practicing
in service to or under the organizational identity of the eligible
taxpayer organization or as an employee of the eligible taxpayer
organization;
(C) Any combination thereof.
(2) Application of credit by the payor against health care
provider tax on physician's services. -- The annual credit
allowable shall be applied to reduce the tax liability directly payable by the payor under section sixteen, article twenty-seven of
this chapter, determined after application of all other allowable
credits and exemptions.
(3) Application of credit by the eligible taxpayer
organization against health care provider tax on physician's
services. -- After application of this credit, as provided in
subdivision (2) of this subsection, remaining annual credit shall
then be applied to reduce the tax liability directly payable by the
eligible taxpayer organization under section sixteen, article
twenty-seven of this chapter, determined after application of all
other allowable credits and exemptions.
(4) Apportionment among multiple eligible taxpayer
organizations. -- Where a payor described in subdivision (1) of
this subsection pays tail insurance premiums for and provides or
formerly provided services to or under the organizational identity
of two or more eligible taxpayer organizations described in this
section or as an employee of two or more such eligible taxpayer
organizations, the tax credit shall, for purposes of subdivision
(3) of this subsection, be allocated among such eligible taxpayer
organizations in proportion to the tail insurance premium paid
directly by the payor during the taxable year to cover tail
liability for, or on behalf of, each eligible taxpayer
organization. In no event may the total credit claimed by all
eligible taxpayers and eligible taxpayer organizations exceed the credit which would be allowable if the payor had paid all such tail
insurance premiums for or on behalf of one eligible taxpayer
organization, and if all physician's services had been performed
for, or under the organizational identity of, or by employees of,
one eligible taxpayer organization.

§11-13T-8. Legislative rules.

The tax commissioner shall propose for promulgation pursuant
to the provisions of article three, chapter twenty-nine-a of this
code such rules as may be necessary to carry out the purposes of
this article.

§11-13T-9. Burden of proof.

The burden of proof is on the person claiming the credit
allowed by this article to establish by clear and convincing
evidence that the person is entitled to the amount of credit
asserted for the taxable year.

§11-13T-10. Effective date.

This article shall be effective for taxable years beginning on
or after the first day of January, two thousand two.

§11-13T-11. Termination of tax credit.

No credit shall be allowed under this article for any taxable
year ending after the thirty-first day of December, two thousand
four.

§29-12B-14. Effective date and termination of authority.
The provisions of this article are effective from passage.
Any policies written under this article may have an effective date
restorative to the effective date of this article. Upon the
transfer of all assets, obligations and liabilities of the board of
risk and insurance management by virtue of this article to the
health care mutual insurance company provided for by article
twenty-f of this chapter, all authority of the board of risk and
insurance management to issue health care liability policies under
this article ceases.ARTICLE 12C. PATIENT INJURY COMPENSATION PLAN.

(a) In recognition of the statewide concern over the rising
cost of medical malpractice insurance and the difficulty that
health care practitioners have in locating affordable medical
malpractice insurance, there is hereby created a patient injury
compensation fund study board, to study the feasability of
establishing a patient injury compensation fund to reimburse
claimants in medical malpractice actions for any portion of
economic damages awarded which are uncollectible due to statutory limitations on damage awards for trauma care and/or the elimination
of joint and several liability of tortfeasor health care providers
and health care facilities.
(b) The patient injury compensation fund study board shall
consist of the director of the board of risk and insurance
management, who shall serve as chairperson, the insurance
commissioner and an appointee of the governor. The patient injury
compensation fund study board shall utilize the resources of the
board of risk and insurance management and the insurance commission
to effectuate the study required by this article. The patient
injury compensation fund study board shall meet upon the call of
the chair. A simple majority of the patient injury compensation
fund study board members constitute a quorum for the transaction of
business.
(c) The patient injury compensation fund study board is
authorized to hold hearings, conduct investigations and consider,
without limitation, all options for identifying funding methods and
for the operation and administration of a patient injury
compensation fund within the following guidelines:
(1) The board of risk and insurance management is responsible
for implementing, administering and operating any patient injury
compensation fund;
(2) The patient injury compensation fund must be actuarially
sound and fully funded in accordance with generally accepted accounting principles;
(3) Eligibility for reimbursement from the patient injury
compensation fund is limited to claimants who have been awarded
damages in a medical malpractice action but have been certified by
the board of risk and insurance management to be unable, after
exhausting all reasonable means available by law of recovering the
award, to collect all or part of the economic damages awarded due
to the limitations on awards established in sections nine and nine-
c, article seven-b chapter fifty-five of this code; and
(4) The board of risk and insurance management may invest the
moneys in the patient injury compensation fund and use any interest
or other return from investments to pay administration expenses and
claims granted.
(d) The patient injury compensation fund study board's report
and recommendations shall be completed no later than the first day
of December, two thousand three, and shall be presented to the
joint committee of government and finance during the legislative
interim meetings to be held in December, two thousand three.29-12C-2. Legislative rules.
(a) The Legislature hereby declares that an emergency exists
necessitating expeditious implementation of a patient injury
compensation fund, if economically feasible, and directs the
patient injury compensation fund study board to propose emergency
legislative rules relating to the establishment, implementation and operation of the patient injury compensation fund in conjunction
with its report and recommendations to the Legislature under
section one of this article. The rules proposed by the patient
injury compensation fund study board shall:
(1) Provide the funding mechanism and the methodology for
processing and timely and accurately collect funds;
(2) Assure the actuarial soundness of the patient injury
compensation fund and the sufficiency of money to satisfy all
foreseeable claims against the patient injury compensation fund,
giving due consideration to relevant loss or claim experience or
trends and normal costs of operation;
(3) Provide a reasonable reserve fund for unexpected
contingencies, consistent with generally accepted accounting
principles;
(4) Establish appropriate procedures for notification of
payment adjustments prior to any payment periods established in
which a funding adjustment will be in effect, consistent with
generally accepted accounting principles;
(5) Establish procedures for establishing eligibility for and
distribution of funds to claimants seeking reimbursement;
(6) Establish the requirements and procedure for certifying
that a claimant has been unable to collect a portion of the
economic damages recovered;
(7) Establish the process for submitting a claim for payment from the patient injury compensation fund; and
(8) Establish any additional requirements and criteria
consistent with and necessary to effectuate the provisions of this
article.
(b) If the Legislature accepts, in whole or in part, the
recommendations of the patient injury compensation fund study
board, enacts legislation establishing a patient injury
compensation fund, and approves rules governing the initial
establishment, implementation and operation of the patient injury
compensation fund, those rules shall be filed with the secretary of
state as emergency rules.

CHAPTER 30. PROFESSIONS AND OCCUPATIONS.

ARTICLE 3. WEST VIRGINIA MEDICAL PRACTICE ACT.

§30-3-14. Professional discipline of physicians and podiatrists;
reporting of information to board pertaining to medical
professional liability and professional incompetence required;
penalties; grounds for license denial and discipline of
physicians and podiatrists; investigations; physical and
mental examinations; hearings; sanctions; summary sanctions;
reporting by the board; reapplication; civil and criminal
immunity; voluntary limitation of license; probable cause
determinations.

(a) The board may independently initiate disciplinary
proceedings as well as initiate disciplinary proceedings based on information received from medical peer review committees,
physicians, podiatrists, hospital administrators, professional
societies and others.
The board may initiate investigations as to professional
incompetence or other reasons for which a licensed physician or
podiatrist may be adjudged unqualified based upon criminal
convictions; complaints by citizens, pharmacists, physicians,
podiatrists, peer review committees, hospital administrators,
professional societies or others; or. The board shall initiate an
investigation if there are fiveit receives notice that three
judgments or five settlements arising from medical professional
liability actions have been rendered or made against the physician
or podiatrist within the most recenta five-year period in excess
of fifty thousand dollars each. The board may not consider any
judgments or settlements as conclusive evidence of professional
incompetence or conclusive lack of qualification to practice.
(b) Upon request of the board, any medical peer review
committee in this state shall report any information that may
relate to the practice or performance of any physician or
podiatrist known to that medical peer review committee. Copies of
the requests for information from a medical peer review committee
may be provided to the subject physician or podiatrist if, in the
discretion of the board, the provision of such copies will not
jeopardize the board's investigation. In the event that copies are so provided, the subject physician or podiatrist is allowed fifteen
days to comment on the requested information and such comments must
be considered by the board.
The chief executive officer of every hospital shall, within
sixty days after the completion of the hospital's formal
disciplinary procedure and also within sixty days after the
commencement of and again after the conclusion of any resulting
legal action, report in writing to the board the name of any member
of the medical staff or any other physician or podiatrist
practicing in the hospital whose hospital privileges have been
revoked, restricted, reduced or terminated for any cause, including
resignation, together with all pertinent information relating to
such action. The chief executive officer shall also report any
other formal disciplinary action taken against any physician or
podiatrist by the hospital upon the recommendation of its medical
staff relating to professional ethics, medical incompetence,
medical professional liability, moral turpitude or drug or alcohol
abuse. Temporary suspension for failure to maintain records on a
timely basis or failure to attend staff or section meetings need
not be reported. Voluntary cessation of hospital privileges for
reasons unrelated to professional competence or ethics need not be
reported.
Any managed care organization operating in this state which
provides a formal peer review process shall report in writing to the board, within sixty days after the completion of any formal
peer review process and also within sixty days after the
commencement of and again after the conclusion of any resulting
legal action, the name of any physician or podiatrist whose
credentialing has been revoked or not renewed by the managed care
organization. The managed care organization shall also report in
writing to the board any other disciplinary action taken against a
physician or podiatrist relating to professional ethics,
professional liability, moral turpitude or drug or alcohol abuse
within sixty days after completion of a formal peer review process
which results in the action taken by the managed care organization.
For purposes of this subsection, "managed care organization" means
a plan that establishes, operates or maintains a network of health
care providers who have entered into agreements with and been
credentialed by the plan to provide health care services to
enrollees or insureds to whom the plan has the ultimate obligation
to arrange for the provision of or payment for health care services
through organizational arrangements for ongoing quality assurance,
utilization review programs or dispute resolutions.
Any professional society in this state comprised primarily of
physicians or podiatrists which takes formal disciplinary action
against a member relating to professional ethics, professional
incompetence, medical professional liability, moral turpitude or
drug or alcohol abuse, shall report in writing to the board within sixty days of a final decision the name of the member, together
with all pertinent information relating to the action.
Every person, partnership, corporation, association, insurance
company, professional society or other organization providing
professional liability insurance to a physician or podiatrist in
this state, including the state board of risk and insurance
management, shall submit to the board the following information
within thirty days from any judgment or settlement of a civil or
medical professional liability action excepting product liability
actions: The name of the insured; the date of any judgment or
settlement; whether any appeal has been taken on the judgment and,
if so, by which party; the amount of any settlement or judgment
against the insured; and other information as the board may require
required by the board.
Within thirty days from the entry of an order by a court in a
medical professional liability action or other civil action wherein
in which a physician or podiatrist licensed by the board is
determined to have rendered health care services below the
applicable standard of care, the clerk of the court in which the
order was entered shall forward a certified copy of the order to
the board.
Within thirty days after a person known to be a physician or
podiatrist licensed or otherwise lawfully practicing medicine and
surgery or podiatry in this state or applying to be so licensed is convicted of a felony under the laws of this state or of any crime
under the laws of this state involving alcohol or drugs in any way,
including any controlled substance under state or federal law, the
clerk of the court of record in which the conviction was entered
shall forward to the board a certified true and correct abstract of
record of the convicting court. The abstract shall include the
name and address of the physician or podiatrist or applicant, the
nature of the offense committed and the final judgment and sentence
of the court.
Upon a determination of the board that there is probable cause
to believe that any person, partnership, corporation, association,
insurance company, professional society or other organization has
failed or refused to make a report required by this subsection, the
board shall provide written notice to the alleged violator stating
the nature of the alleged violation and the time and place at which
the alleged violator shall appear to show good cause why a civil
penalty should not be imposed. The hearing shall be conducted in
accordance with the provisions of article five, chapter
twenty-nine-a of this code. After reviewing the record of the
hearing, if the board determines that a violation of this
subsection has occurred, the board shall assess a civil penalty of
not less than one thousand dollars nor more than ten thousand
dollars against the violator. AnyoneThe board shall notify any
person so assessed shall be notified of the assessment in writing and the notice shall specify the reasons for the assessment. If
the violator fails to pay the amount of the assessment to the board
within thirty days, the attorney general may institute a civil
action in the circuit court of Kanawha County to recover the amount
of the assessment. In any such civil action, the court's review of
the board's action shall be conducted in accordance with the
provisions of section four, article five, chapter twenty-nine-a of
this code. Notwithstanding any other provision of this article to
the contrary, when there are conflicting views by recognized
experts as to whether any alleged conduct breaches an applicable
standard of care, the evidence must be clear and convincing before
the board may find that the physician or podiatrist has
demonstrated a lack of professional competence to practice with a
reasonable degree of skill and safety for patients.
Any person may report to the board relevant facts about the
conduct of any physician or podiatrist in this state which in the
opinion of that person amounts to medical professional liability or
professional incompetence.
The board shall provide forms for filing reports pursuant to
this section. Reports submitted in other forms shall be accepted
by the board.
The filing of a report with the board pursuant to any
provision of this article, any investigation by the board or any
disposition of a case by the board does not preclude any action by a hospital, other health care facility or professional society
comprised primarily of physicians or podiatrists to suspend,
restrict or revoke the privileges or membership of the physician or
podiatrist.
(c) The board may deny an application for license or other
authorization to practice medicine and surgery or podiatry in this
state and may discipline a physician or podiatrist licensed or
otherwise lawfully practicing in this state who, after a hearing,
has been adjudged by the board as unqualified due to any of the
following reasons:
(1) Attempting to obtain, obtaining, renewing or attempting to
renew a license to practice medicine and surgery or podiatry by
bribery, fraudulent misrepresentation or through known error of the
board;
(2) Being found guilty of a crime in any jurisdiction, which
offense is a felony, involves moral turpitude or directly relates
to the practice of medicine. Any plea of nolo contendere is a
conviction for the purposes of this subdivision;
(3) False or deceptive advertising;
(4) Aiding, assisting, procuring or advising any unauthorized
person to practice medicine and surgery or podiatry contrary to
law;
(5) Making or filing a report that the person knows to be
false; intentionally or negligently failing to file a report or record required by state or federal law; willfully impeding or
obstructing the filing of a report or record required by state or
federal law; or inducing another person to do any of the foregoing.
The reports and records as are herein covered in this subdivision
mean only those that are signed in the capacity as a licensed
physician or podiatrist;
(6) Requesting, receiving or paying directly or indirectly a
payment, rebate, refund, commission, credit or other form of profit
or valuable consideration for the referral of patients to any
person or entity in connection with providing medical or other
health care services or clinical laboratory services, supplies of
any kind, drugs, medication or any other medical goods, services or
devices used in connection with medical or other health care
services;
(7) Unprofessional conduct by any physician or podiatrist in
referring a patient to any clinical laboratory or pharmacy in which
the physician or podiatrist has a proprietary interest unless the
physician or podiatrist discloses in writing such interest to the
patient. The written disclosure shall indicate that the patient
may choose any clinical laboratory for purposes of having any
laboratory work or assignment performed or any pharmacy for
purposes of purchasing any prescribed drug or any other medical
goods or devices used in connection with medical or other health
care services.
As used hereinin this subdivision, "proprietary interest"
does not include an ownership interest in a building in which space
is leased to a clinical laboratory or pharmacy at the prevailing
rate under a lease arrangement that is not conditional upon the
income or gross receipts of the clinical laboratory or pharmacy;
(8) Exercising influence within a patient-physician
relationship for the purpose of engaging a patient in sexual
activity;
(9) Making a deceptive, untrue or fraudulent representation in
the practice of medicine and surgery or podiatry;
(10) Soliciting patients, either personally or by an agent,
through the use of fraud, intimidation or undue influence;
(11) Failing to keep written records justifying the course of
treatment of a patient, the records to includeincluding, but not
be limited to, patient histories, examination and test results and
treatment rendered, if any;
(12) Exercising influence on a patient in such a way as to
exploit the patient for financial gain of the physician or
podiatrist or of a third party. Any influence includes, but is not
limited to, the promotion or sale of services, goods, appliances or
drugs;
(13) Prescribing, dispensing, administering, mixing or
otherwise preparing a prescription drug, including any controlled
substance under state or federal law, other than in good faith and in a therapeutic manner in accordance with accepted medical
standards and in the course of the physician's or podiatrist's
professional practice: Provided, That a physician who discharges
his or her professional obligation to relieve the pain and
suffering and promote the dignity and autonomy of dying patients in
his or her care and, in so doing, exceeds the average dosage of a
pain relieving controlled substance, as defined in Schedule II and
III of the Uniform Controlled Substance Act, does not violate this
article;
(14) Performing any procedure or prescribing any therapy that,
by the accepted standards of medical practice in the community,
would constitute experimentation on human subjects without first
obtaining full, informed and written consent;
(15) Practicing or offering to practice beyond the scope
permitted by law or accepting and performing professional
responsibilities that the person knows or has reason to know he or
she is not competent to perform;
(16) Delegating professional responsibilities to a person when
the physician or podiatrist delegating the responsibilities knows
or has reason to know that the person is not qualified by training,
experience or licensure to perform them;
(17) Violating any provision of this article or a rule or
order of the board or failing to comply with a subpoena or subpoena
duces tecum issued by the board;
(18) Conspiring with any other person to commit an act or
committing an act that would tend to coerce, intimidate or preclude
another physician or podiatrist from lawfully advertising his or
her services;
(19) Gross negligence in the use and control of prescription
forms;
(20) Professional incompetence; or
(21) The inability to practice medicine and surgery or
podiatry with reasonable skill and safety due to physical or mental
impairment, including deterioration through the aging process or,
loss of motor skill or abuse of drugs or alcohol. A physician or
podiatrist adversely affected under this subdivision shall be
afforded an opportunity at reasonable intervals to demonstrate that
he or she may resume the competent practice of medicine and surgery
or podiatry with reasonable skill and safety to patients. In any
proceeding under this subdivision, neither the record of
proceedings nor any orders entered by the board shall be used
against the physician or podiatrist in any other proceeding.
(d) The board shall deny any application for a license or
other authorization to practice medicine and surgery or podiatry in
this state to any applicant who, and shall revoke the license of
any physician or podiatrist licensed or otherwise lawfully
practicing within this state who, is found guilty by any court of
competent jurisdiction of any felony involving prescribing, selling, administering, dispensing, mixing or otherwise preparing
any prescription drug, including any controlled substance under
state or federal law, for other than generally accepted therapeutic
purposes. Presentation to the board of a certified copy of the
guilty verdict or plea rendered in the court is sufficient proof
thereof for the purposes of this article. A plea of nolo
contendere has the same effect as a verdict or plea of guilt.
(e) The board may refer any cases coming to its attention to
an appropriate committee of an appropriate professional
organization for investigation and report. Except for complaints
related to obtaining initial licensure to practice medicine and
surgery or podiatry in this state by bribery or fraudulent
misrepresentation, any complaint filed more than two years after
the complainant knew, or in the exercise of reasonable diligence
should have known, of the existence of grounds for the complaint,
shall be dismissed: Provided, That in cases of conduct alleged to
be part of a pattern of similar misconduct or professional
incapacity that, if continued, would pose risks of a serious or
substantial nature to the physician or podiatrist's current
patients, the investigating body may conduct a limited
investigation related to the physician or podiatrist's current
capacity and qualification to practice and may recommend
conditions, restrictions or limitations on the physician or
podiatrist's license to practice that it considers necessary for the protection of the public. Any report shall contain
recommendations for any necessary disciplinary measures and shall
be filed with the board within ninety days of any referral. The
recommendations shall be considered by the board and the case may
be further investigated by the board. The board after full
investigation shall take whatever action it deemsconsiders
appropriate, as provided hereinin this section.
(f) The investigating body, as provided for in subsection (e)
of this section, may request and the board under any circumstances
may require a physician or podiatrist or person applying for
licensure or other authorization to practice medicine and surgery
or podiatry in this state to submit to a physical or mental
examination by a physician or physicians approved by the board. A
physician or podiatrist submitting to any suchan examination has
the right, at his or her expense, to designate another physician to
be present at the examination and make an independent report to the
investigating body or the board. The expense of the examination
shall be paid by the board. Any individual who applies for or
accepts the privilege of practicing medicine and surgery or
podiatry in this state is considered to have given his or her
consent to submit to all examinations when requested to do so in
writing by the board and to have waived all objections to the
admissibility of the testimony or examination report of any
examining physician on the ground that the testimony or report is privileged communication. If a person fails or refuses to submit
to any suchan examination under circumstances which the board
finds are not beyond his or her control, failure or refusal is
prima facie evidence of his or her inability to practice medicine
and surgery or podiatry competently and in compliance with the
standards of acceptable and prevailing medical practice.
(g) In addition to any other investigators it employs, the
board may appoint one or more licensed physicians to act for it in
investigating the conduct or competence of a physician.
(h) In every disciplinary or licensure denial action, the
board shall furnish the physician or podiatrist or applicant with
written notice setting out with particularity the reasons for its
action. Disciplinary and licensure denial hearings shall be
conducted in accordance with the provisions of article five,
chapter twenty-nine-a of this code. However, hearings shall be
heard upon sworn testimony and the rules of evidence for trial
courts of record in this state shall apply to all hearings. A
transcript of all hearings under this section shall be made, and
the respondent may obtain a copy of the transcript at his or her
expense. The physician or podiatrist has the right to defend
against any charge by the introduction of evidence, the right to be
represented by counsel, the right to present and cross-examine
witnesses and the right to have subpoenas and subpoenas duces tecum
issued on his or her behalf for the attendance of witnesses and the production of documents. The board shall make all its final
actions public. The order shall contain the terms of all action
taken by the board.
(i) In disciplinary actions in which probable cause has been
found by the board, the board shall, within twenty days of the date
of service of the written notice of charges or sixty days prior to
the date of the scheduled hearing, whichever is sooner, provide the
respondent with the complete identity, address and telephone number
of any person known to the board with knowledge about the facts of
any of the charges; provide a copy of any statements in the
possession of or under the control of the board; provide a list of
proposed witnesses with addresses and telephone numbers, with a
brief summary of his or her anticipated testimony; provide
disclosure of any trial expert pursuant to the requirements of rule
26(b)(4) of the West Virginia rules of civil procedure; provide
inspection and copying of the results of any reports of physical
and mental examinations or scientific tests or experiments; and
provide a list and copy of any proposed exhibit to be used at the
hearing: Provided, That the board shall not be required to furnish
or produce any materials which contain opinion work product
information or would be a violation of the attorney-client
privilege. Within twenty days of the date of service of the
written notice of charges, the board shall be required to disclose
any exculpatory evidence with a continuing duty to do so throughout the disciplinary process. Within thirty days of receipt of the
board's mandatory discovery, the respondent shall provide the board
with the complete identity, address and telephone number of any
person known to the respondent with knowledge about the facts of
any of the charges; provide a list of proposed witnesses with
addresses and telephone numbers, to be called at hearing, with a
brief summary of his or her anticipated testimony; provide
disclosure of any trial expert pursuant to the requirements of rule
26(b)(4) of the West Virginia rules of civil procedure; provide
inspection and copying of the results of any reports of physical
and mental examinations or scientific tests or experiments; and
provide a list and copy of any proposed exhibit to be used at the
hearing.
(j) Whenever it finds any person unqualified because of any of
the grounds set forth in subsection (c) of this section, the board
may enter an order imposing one or more of the following:
(1) Deny his or her application for a license or other
authorization to practice medicine and surgery or podiatry;
(2) Administer a public reprimand;
(3) Suspend, limit or restrict his or her license or other
authorization to practice medicine and surgery or podiatry for not
more than five years, including limiting the practice of that
person to, or by the exclusion of, one or more areas of practice,
including limitations on practice privileges;
(4) Revoke his or her license or other authorization to
practice medicine and surgery or podiatry or to prescribe or
dispense controlled substances for a period not to exceed ten
years;
(5) Require him or her to submit to care, counseling or
treatment designated by the board as a condition for initial or
continued licensure or renewal of licensure or other authorization
to practice medicine and surgery or podiatry;
(6) Require him or her to participate in a program of
education prescribed by the board;
(7) Require him or her to practice under the direction of a
physician or podiatrist designated by the board for a specified
period of time; and
(8) Assess a civil fine of not less than one thousand dollars
nor more than ten thousand dollars.
(k) Notwithstanding the provisions of section eight, article
one, chapter thirty of this code, if the board determines the
evidence in its possession indicates that a physician's or
podiatrist's continuation in practice or unrestricted practice
constitutes an immediate danger to the public, the board may take
any of the actions provided for in subsection (j) of this section
on a temporary basis and without a hearing if institution of
proceedings for a hearing before the board are initiated
simultaneously with the temporary action and begin within fifteen days of the action. The board shall render its decision within
five days of the conclusion of a hearing under this subsection.
(l) Any person against whom disciplinary action is taken
pursuant to the provisions of this article has the right to
judicial review as provided in articles five and six, chapter
twenty-nine-a of this code: Provided, That a circuit judge may
also remand the matter to the board if it appears from competent
evidence presented to it in support of a motion for remand that
there is newly discovered evidence of such a character as ought to
produce an opposite result at a second hearing on the merits before
the board and:
(1) The evidence appears to have been discovered since the
board hearing; and
(2) The physician or podiatrist exercised due diligence in
asserting his or her evidence and that due diligence would not have
secured the newly discovered evidence prior to the appeal.
A person may not practice medicine and surgery or podiatry or
deliver health care services in violation of any disciplinary order
revoking, suspending or limiting his or her license while any
appeal is pending. Within sixty days, the board shall report its
final action regarding restriction, limitation, suspension or
revocation of the license of a physician or podiatrist, limitation
on practice privileges or other disciplinary action against any
physician or podiatrist to all appropriate state agencies, appropriate licensed health facilities and hospitals, insurance
companies or associations writing medical malpractice insurance in
this state, the American medical association, the American podiatry
association, professional societies of physicians or podiatrists in
the state and any entity responsible for the fiscal administration
of medicare and medicaid.
(m) Any person against whom disciplinary action has been taken
under the provisions of this article shall, at reasonable
intervals, be afforded an opportunity to demonstrate that he or she
can resume the practice of medicine and surgery or podiatry on a
general or limited basis. At the conclusion of a suspension,
limitation or restriction period the physician or podiatrist may
resume practice if the board has so ordered.
(n) Any entity, organization or person, including the board,
any member of the board, its agents or employees and any entity or
organization or its members referred to in this article, any
insurer, its agents or employees, a medical peer review committee
and a hospital governing board, its members or any committee
appointed by it acting without malice and without gross negligence
in making any report or other information available to the board or
a medical peer review committee pursuant to law and any person
acting without malice and without gross negligence who assists in
the organization, investigation or preparation of any such report
or information or assists the board or a hospital governing body or any committee in carrying out any of its duties or functions
provided by law is immune from civil or criminal liability, except
that the unlawful disclosure of confidential information possessed
by the board is a misdemeanor as provided for in this article.
(o) A physician or podiatrist may request in writing to the
board a limitation on or the surrendering of his or her license to
practice medicine and surgery or podiatry or other appropriate
sanction as provided hereinin this section. The board may grant
the request and, if it considers it appropriate, may waive the
commencement or continuation of other proceedings under this
section. A physician or podiatrist whose license is limited or
surrendered or against whom other action is taken under this
subsection may, at reasonable intervals, petition for removal of
any restriction or limitation on or for reinstatement of his or her
license to practice medicine and surgery or podiatry.
(p) In every case considered by the board under this article
regarding discipline or licensure, whether initiated by the board
or upon complaint or information from any person or organization,
the board shall make a preliminary determination as to whether
probable cause exists to substantiate charges of disqualification
due to any reason set forth in subsection (c) of this section. If
probable cause is found to exist, all proceedings on the charges
shall be open to the public who shall beare entitled to all
reports, records and nondeliberative materials introduced at the hearing, including the record of the final action taken: Provided,
That any medical records, which were introduced at the hearing and
which pertain to a person who has not expressly waived his or her
right to the confidentiality of the records, may not be open to the
public nor is the public entitled to the records.(q) If the board receives notice that a physician or
podiatrist has been subjected to disciplinary action or had his or
her credentials suspended or revoked by the board, a hospital or a
professional society, as defined in subsection (b) of this section,
for three or more incidents during a five-year period, the board
shall require the physician or podiatrist to practice under the
direction of a physician or podiatrist designated by the board for
a specified period of time to be established by the board.
_____(q)(r) Notwithstanding any other provisions of this article,
the board may, at any time, on its own motion, or upon motion by
the complainant, or upon motion by the physician or podiatrist, or
by stipulation of the parties, refer the matter to mediation. The
board shall obtain a list from the West Virginia state bar's
mediator referral service of certified mediators with expertise in
professional disciplinary matters. The board and the physician or
podiatrist may choose a mediator from thisthat list. If the board
and the physician or podiatrist are unable to agree on a mediator,
the board shall designate a mediator from this listingthe list by
neutral rotation. The mediation shall not be considered a proceeding open to the public and any reports and records
introduced at the mediation shall not become part of the public
record. The mediator and all participants in the mediation shall
maintain and preserve the confidentiality of all mediation
proceedings and records. The mediator may not be subpoenaed or
called to testify or otherwise be subject to process requiring
disclosure of confidential information in any proceeding relating
to or arising out of the disciplinary or licensure matter mediated:
Provided, That any confidentiality agreement and any written
agreement made and signed by the parties as a result of mediation
may be used in any proceedings subsequently instituted to enforce
the written agreement. The agreements may be used in other
proceedings if the parties agree in writing.ARTICLE 14. OSTEOPATHIC PHYSICIANS AND SURGEONS.

§30-14-12a. Initiation of suspension or revocation proceedings
allowed and required; reporting of information to board
pertaining to professional malpractice and professional
incompetence required; penalties; probable cause
determinations.
(a) The board may independently initiate suspension or
revocation proceedings as well as initiate suspension or revocation
proceedings based on information received from any person.
The board shall initiate investigations as to professional
incompetence or other reasons for which a licensed osteopathic physician and surgeon may be adjudged unqualified if the board
receives notice that five or more judgments or settlements arising
from medical professional liability have been rendered or made
against such osteopathic physician.
(b) Upon request of the board, any medical peer review
committee in this state shall report any information that may
relate to the practice or performance of any osteopathic physician
known to that medical peer review committee. Copies of such
requests for information from a medical peer review committee may
be provided to the subject osteopathic physician if, in the
discretion of the board, the provision of such copies will not
jeopardize the board's investigation. In the event that copies are
so provided, the subject osteopathic physician is allowedhas
fifteen days to comment on the requested information and such
comments must be considered by the board.
After the completion of a hospital's formal disciplinary
procedure and after any resulting legal action, the chief executive
officer of such hospital shall report in writing to the board
within sixty days the name of any member of the medical staff or
any other osteopathic physician practicing in the hospital whose
hospital privileges have been revoked, restricted, reduced or
terminated for any cause, including resignation, together with all
pertinent information relating to such action. The chief executive
officer shall also report any other formal disciplinary action taken against any osteopathic physician by the hospital upon the
recommendation of its medical staff relating to professional
ethics, medical incompetence, medical malpractice, moral turpitude
or drug or alcohol abuse. Temporary suspension for failure to
maintain records on a timely basis or failure to attend staff or
section meetings need not be reported.
Any professional society in this state comprised primarily of
osteopathic physicians or physicians and surgeons of other schools
of medicine which takes formal disciplinary action against a member
relating to professional ethics, professional incompetence,
professional malpractice, moral turpitude or drug or alcohol abuse,
shall report in writing to the board within sixty days of a final
decision the name of such member, together with all pertinent
information relating to such action.
Every person, partnership, corporation, association, insurance
company, professional society or other organization providing
professional liability insurance to an osteopathic physician in
this state shall submit to the board the following information
within thirty days from any judgment, dismissal or settlement of a
civil action or of any claim involving the insured: The date of
any judgment, dismissal or settlement; whether any appeal has been
taken on the judgment, and, if so, by which party; the amount of
any settlement or judgment against the insured; and such other
information asrequired by the board may require.
Within thirty days after a person known to be an osteopathic
physician licensed or otherwise lawfully practicing medicine and
surgery in this state or applying to be so licensed is convicted of
a felony under the laws of this state, or of any crime under the
laws of this state involving alcohol or drugs in any way, including
any controlled substance under state or federal law, the clerk of
the court of record in which the conviction was entered shall
forward to the board a certified true and correct abstract of
record of the convicting court. The abstract shall include the
name and address of such osteopathic physician or applicant, the
nature of the offense committed and the final judgment and sentence
of the court.
Upon a determination of the board that there is probable cause
to believe that any person, partnership, corporation, association,
insurance company, professional society or other organization has
failed or refused to make a report required by this subsection, the
board shall provide written notice to the alleged violator stating
the nature of the alleged violation and the time and place at which
the alleged violator shall appear to show good cause why a civil
penalty should not be imposed. The hearing shall be conducted in
accordance with the provisions of article five, chapter twenty-
nine-a of this code. After reviewing the record of such hearing,
if the board determines that a violation of this subsection has
occurred, the board shall assess a civil penalty of not less than one thousand dollars nor more than ten thousand dollars against
such violator. Any one soThe board shall notify any one assessed
shall be notified of the assessment in writing and the notice shall
specify the reasons for the assessment. If the violator fails to
pay the amount of the assessment to the board within thirty days,
the attorney general may institute a civil action in the circuit
court of Kanawha County to recover the amount of the assessment.
In any such civil action, the court's review of the board's action
shall be conducted in accordance with the provisions of section
four, article five, chapter twenty-nine-a of this code.
Any person may report to the board relevant facts about the
conduct of any osteopathic physician in this state which in the
opinion of such person amounts to professional malpractice or
professional incompetence.
The board shall provide forms for filing reports pursuant to
this section. Reports submitted in other forms shall be accepted
by the board.
The filing of a report with the board pursuant to any
provision of this article, any investigation by the board or any
disposition of a case by the board does not preclude any action by
a hospital, other health care facility or professional society
comprised primarily of osteopathic physicians or physicians and
surgeons of other schools of medicine to suspend, restrict or
revoke the privileges or membership of such osteopathic physician.
(c) In every case considered by the board under this article
regarding suspension, revocation or issuance of a license whether
initiated by the board or upon complaint or information from any
person or organization, the board shall make a preliminary
determination as to whether probable cause exists to substantiate
charges of cause to suspend, revoke or refuse to issue a license as
set forth in subsection (a), section eleven of this article. If
such probable cause is found to exist, all proceedings on such
charges shall be open to the public who shall beare entitled to
all reports, records, and nondeliberative materials introduced at
such hearing, including the record of the final action taken:
Provided, That any medical records, which were introduced at such
hearing and which pertain to a person who has not expressly waived
his right to the confidentiality of such records, shall not be open
to the public nor is the public entitled to such records. If a
finding is made that probable cause does not exist, the public has
a right of access to the complaint or other document setting forth
the charges, the findings of fact and conclusions supporting such
finding that probable cause does not exist, if the subject
osteopathic physician consents to such access.(d) If the board receives notice that an osteopathic physician
has been subjected to disciplinary action or had his or her
credentials suspended or revoked by the board, a medical peer
review committee, a hospital or professional society, as defined in subsection (b) of this section, for three or more incidents in a
five-year period, the board shall require the osteopathic physician
to practice under the direction of another osteopathic physician
for a specified period to be established by the board.

CHAPTER 33. INSURANCE.
ARTICLE 2. INSURANCE COMMISSIONER.

§33-2-9a. Imposing a one-time assessment on all insurance
carriers.

For the purpose of completely novating the liability currently
borne by the state under the West Virginia health care provider
professional liability insurance availability act found in article
twelve-b, chapter twenty-nine of this code, and to help capitalize
the new health care mutual created in article twenty-f of this
chapter, and for all the reasons set forth in section two of said
article, there is hereby imposed a one-time assessment of two
thousand five hundred dollars on all insurers licensed in this
chapter, except risk retention groups defined in subsection (f),
section four, article thirty-two of this chapter and risk
purchasing groups defined in subsection (e), section seventeen of
said article.ARTICLE 4. GENERAL PROVISIONS.

§33-4-15a. Credit for reinsurance; definitions; requirements;
trust accounts; reductions from liability; security; effective
date.
(a) For purposes of this section, an "accredited reinsurer" is
one which:
(1) Has filed an application for accreditation and received a
letter of accreditation from the commissioner;
(2) Is licensed to transact insurance or reinsurance in at
least one of the fifty states of the United States or the District
of Columbia or, in the case of a United States branch of an alien
assuming insurer, is entered through and licensed to transact
insurance or reinsurance in at least one of the fifty states of the
United States or the District of Columbia;
(3) Has filed with the application a certified statement that
the company submits to this state's jurisdiction and that the
company will comply with the laws, rules and regulations of the
state of West Virginia;
(4) Has filed with the application a certified statement that
the company submits to the examination authority granted the
commissioner by section nine, article two of this chapter and will
pay all examination costs and fees as required by that section, and
the one-time assessment imposed in section nine-a, article two of
this chapter;
(5) Has filed with the application a copy of its most recent
annual statement in a form consistent with the requirements of
subdivision (8) of this subsection and a copy of its last audited
financial statement;
(6) Has filed any other information the commissioner requests
to determine that the company qualifies for accreditation under
this section;
(7) Has remitted the applicable processing fee with its
application for accreditation;
(8) Files with the commissioner after initial accreditation on
or before the first day of March of each year a true statement of
its financial condition, transactions and affairs as of the
preceding thirty-first day of December. The statement shall be on
the appropriate national association of insurance commissioners
annual statement blank; shall be prepared in accordance with the
national association of insurance commissioners annual statement
instructions; and shall follow the accounting practices and
procedures prescribed by the national association of insurance
commissioners accounting practices and procedures manual as
amended. The statement shall be accompanied by the applicable
annual statement filing fee. The commissioner may grant extensions
of time for filing of this annual statement upon application by the
accredited reinsurer; and
(9) Files with the commissioner after initial accreditation by
the first day of June of each year a copy of its audited financial
statement for the period ending the preceding thirty-first day of
December.
(b) If the commissioner determines that the assuming insurer has failed to continue to meet any of these qualifications, he or
she may upon written notice and hearing, as prescribed by section
thirteen, article two of this chapter, revoke an assuming insurer's
accreditation. Credit shall not be allowed to a ceding insurer if
the assuming insurers' accreditation has been revoked by the
commissioner after notice and hearing.
(c) Credit for reinsurance shall be allowed a domestic ceding
insurer or any foreign or alien insurer transacting insurance in
West Virginia that is domiciled in a jurisdiction that employs
standards regarding credit for reinsurance that are not
substantially similar to those applicable under this article as
either an asset or a deduction from liability on account of
reinsurance ceded only when the reinsurer meets one of the
following requirements:
(1) Credit shall be allowed when the reinsurance is ceded to
an assuming insurer which is licensed to transact insurance or
reinsurance in this state.
(2) Credit shall be allowed when the reinsurance is ceded to
an assuming insurer which is accredited as a reinsurer in this
state prior to the effective date of the reinsurance contract.
(3) Credit shall be allowed when the reinsurance is ceded to
an assuming insurer which is domiciled and licensed in, or in the
case of a United States branch of an alien assuming insurer, is
entered through one of the fifty states of the United States or the District of Columbia and which employs standards regarding credit
for reinsurance substantially similar to those applicable under
this statute, and the ceding insurer provides evidence suitable to
the commissioner that the assuming insurer:
(A) Maintains a surplus as regards policyholders in an amount
not less than twenty million dollars: Provided, That the
requirements of this paragraph do not apply to reinsurance ceded
and assumed pursuant to pooling arrangements among insurers in the
same holding company system;
(B) The ceding insurer provides the commissioner with a
certified statement from the assuming insurer that the assuming
insurer submits to the authority of this state to examine its books
and records granted the commissioner by section nine, article two
of this chapter and will pay all examination costs and fees as
required by that section; and
(C) The reinsurer complies with the provisions of subdivision
(6), subsection (c) herein.
(4) Credit shall be allowed when the reinsurance is ceded to
an assuming insurer which maintains a trust fund as required by
subsection (d) herein in a qualified United States financial
institution, as defined by this section, for the payment of the
valid claims of its United States policyholders and ceding
insurers, their assigns and successors in interest, and complies
with the provisions of subdivision (6) herein.
(5) Credit shall be allowed when the reinsurance is ceded to
an assuming insurer not meeting the requirements of subdivisions
(1) through (4), inclusive, subsection (c) of this section, but
only with respect to the insurance of risks located in
jurisdictions where such reinsurance is required by applicable law
or regulation of that jurisdiction.
(6) If the assuming insurer is not licensed or accredited to
transact insurance or reinsurance in this state, the credit
permitted by subdivisions (3) and (4) of this subsection shall not
be allowed unless the assuming insurer agrees in the reinsurance
agreements:
(A) That in the event of the failure of the assuming insurer
to perform its obligations under the terms of the reinsurance
agreement, the assuming insurer, at the request of the ceding
insurer, shall submit to the jurisdiction of any court of competent
jurisdiction in any state of the United States, shall comply with
all requirements necessary to give such court jurisdiction, and
shall abide by the final decision of such court or of any appellate
court in the event of an appeal; and
(B) To designate the secretary of state as its true and lawful
attorney upon whom may be served any lawful process in any action,
suit or proceeding instituted by or on behalf of the ceding
company. Process shall be served upon the secretary of state, or
accepted by him or her, in the same manner as provided for service of process upon unlicensed insurers under section thirteen of this
article: Provided, That this provision is not intended to conflict
with or override the obligation of the parties to a reinsurance
agreement to arbitrate their disputes, if such an obligation is
created in the agreement.
(d) Whenever an assuming insurer establishes a trust fund for
the payment of claims pursuant to the provisions of this section,
the following requirements shall apply:
(1) The assuming insurer shall report annually to the
commissioner information substantially the same as that required to
be reported on the national association of insurance commissioners
annual statement form by licensed insurers to enable the
commissioner to determine the sufficiency of the trust fund. In
the case of a single assuming insurer, the trust shall consist of
a trusteed account representing the assuming insurer's liabilities
attributable to business written in the United States and, in
addition, the assuming insurer shall maintain a trusteed surplus of
not less than twenty million dollars. In the case of a group,
including incorporated and individual unincorporated underwriters,
the trust shall consist of a trusteed account representing the
group's liabilities attributable to business written in the United
States and, in addition, the group shall maintain a trusteed
surplus of which one hundred million dollars shall be held jointly
for the benefit of United States ceding insurers of any member of the group. The incorporated members of the group shall not be
engaged in any business other than underwriting as a member of the
group and shall be subject to the same level of solvency regulation
and control by the group's domiciliary regulator as are the
unincorporated members. The group shall make available to the
commissioner an annual certification of the solvency of each
underwriter by the group's domiciliary regulator and its
independent public accountants.
(2) In the case of a group of incorporated insurers under
common administration which complies with the filing requirements
contained in the previous paragraph; which has continuously
transacted an insurance business outside the United States for at
least three years immediately prior to making application for
accreditation; which submits to this state's authority to examine
its books and records and bears the expense of the examination; and
which has aggregate policyholders' surplus of ten billion dollars,
the trust shall be in an amount equal to the group's several
liabilities attributable to business ceded by United States ceding
insurers to any member of the group pursuant to reinsurance
contracts issued in the name of the group. The group shall also
maintain a joint trusteed surplus of which one hundred million
dollars shall be held jointly for the benefit of United States
ceding insurers of any member of the group as additional security
for any such liabilities. Each member of the group shall make available to the commissioner an annual certification of the
member's solvency by the member's domiciliary regulator and its
independent public accountants.
(3) Any trust that is subject to the provisions of this
section shall be established in a form approved by the
commissioner. The trust instrument shall provide that contested
claims shall be valid and enforceable upon the final order of any
court of competent jurisdiction in the United States. The trust
shall vest legal title to its assets in the trustees of the trust
for its United States policyholders and ceding insurers, their
assigns and successors in interest. The trust and the assuming
insurer shall be subject to examination as determined by the
commissioner. The trust described herein shall remain in effect
for as long as the assuming insurer shall have outstanding
obligations due under the reinsurance agreements subject to the
trust.
(4) No later than the twenty-eighth day of February of each
year the trustees of the trust shall report to the commissioner in
writing setting forth the balance of the trust and listing the
trust's investments at the preceding year's end. The trustees
shall certify the date of termination of the trust, if so planned,
or certify that the trust shall not expire prior to the next
following December thirty-first.
(e) A reduction from liability for the reinsurance ceded by a ceding insurer subject to the requirements of this article to an
assuming insurer not meeting the requirements of subsection (c) of
this section shall be allowed in an amount not exceeding the
liabilities carried by the ceding insurer. The reduction shall be
in the amount of funds held by or on behalf of the ceding insurer,
including funds held in trust for the ceding insurer, under a
reinsurance contract with the assuming insurer as security for the
payment of obligations thereunder: Provided, That the security is
held in the United States subject to withdrawal solely by, and
under the exclusive control of, the ceding insurer; or, in the case
of a trust, held in a qualified United States financial
institution, as defined by this section. The security may be in
the form of:
(1) Cash;
(2) Securities listed by the securities valuation office of
the national association of insurance commissioners and qualifying
as admitted assets; or
(3) Clean, irrevocable, unconditional letters of credit,
issued or confirmed by a qualified United States financial
institution, as defined by this section, no later than the thirty-
first day of December of the year for which filing is being made,
and in the possession of the ceding company on or before the filing
date of its annual statement: Provided, That letters of credit
meeting applicable standards of issuer acceptability as of the dates of their issuance or confirmation shall, notwithstanding the
issuing or confirming institution's subsequent failure to meet
applicable standards of issuer acceptability, continue to be
acceptable as security until their expiration, extension, renewal,
modification or amendment, whichever first occurs.
(f) For purposes of this section, a "qualified United States
financial institution" means an institution that:
(1) Is organized or licensed under the laws of the United
States or any state thereof;
(2) Is regulated, supervised and examined by United States
federal or state authorities having regulatory authority over banks
and trust companies; and
(3) Has been determined by either the commissioner, or the
securities valuation office of the national association of
insurance commissioners, to meet the standards of financial
condition and standing as are considered necessary and appropriate
to regulate the quality of financial institutions whose letters of
credit will be acceptable to the commissioner.
(g) A "qualified United States financial institution" means,
for purposes of those provisions of this law specifying those
institutions that are eligible to act as a fiduciary of a trust, an
institution that:
(1) Is organized or, in the case of a United States branch or
agency office of a foreign banking organization, licensed under the laws of the United States or any state thereof and has been granted
authority to operate with fiduciary powers; and
(2) Is regulated, supervised and examined by federal or state
authorities having regulatory authority over banks and trust
companies.
(h) The provisions of this section shall apply to all cessions
on or after the first day of January, one thousand nine hundred
ninety-three.

ARTICLE 20B. RATES AND MALPRACTICE INSURANCE POLICIES.

§33-20B-1a. Requiring malpractice insurers to offer coverage for
all areas of specialization or fields of practice.

(a) Any admitted insurance company issuing professional
liability or malpractice insurance policies to physicians licensed
to practice medicine in West Virginia shall offer coverage to
physicians in all areas of specialization or fields of practice,
except as provided by the commissioner. This section shall not be
construed to require the issuance of a policy contrary to
established underwriting practices, provided that the underwriting
practices do not unfairly discriminate against a particular area of
specialization or field of practice.
(b) This section shall not be construed to prevent an
insurance company issuing professional liability or malpractice
insurance policies to physicians licensed to practice medicine in
West Virginia from limiting the amount of coverage provided or from making a premium surcharge for the coverage in accordance with
established underwriting practices and an approved scheduled rating
plan, "consent to" rates or "guide A" rates, provided that the
underwriting practices do not unfairly discriminate against a
particular area of specialization or field of practice.
(c) This section shall not apply to companies chartered to
write single specialization policies or policies obtained through
specialty associations, provided that the underwriting practices do
not unfairly discriminate against a particular area of
specialization or field of practice.

§33-20B-2. Ratemaking.

AnyThe commissioner shall make any and all modifications of
rates shall be made in accordance with the following provisions:
(a) Due consideration shall be given to the company's past and
prospective loss experience within and outside this state.
(b) Due consideration shall be given to catastrophe hazards,
if any, to a reasonable margin for underwriting profit and
contingencies, to dividends, savings or unabsorbed premium deposits
allowed or returned by insurers to their policyholders, members or
subscribers and actual past expenses and demonstrable prospective
or projected expenses applicable to this state.
(c) Rates shall not be excessive, inadequate, predatory or
unfairly discriminatory.
(d) Risks may not be grouped by territorial areas for the establishment of rates and minimum premiums.
(e) An insurer may use guide "A" rates and other nonapproved
rates, also known as "consent to rates": Provided, That the
insurer shall, prior to entering into an agreement with an
individual provider or any health care entity, submit guide "A"
rates and other nonapproved rates to the commissioner for review
and approval: Provided, however, That the commissioner shall
propose legislative rules for promulgation in accordance with the
provisions of article three, chapter twenty-nine-a of this code,
which set forth the standards and procedure for reviewing and
approving guide "A" rates and other nonapproved rates. No insurer
may require execution of a consent to rate endorsement for the
purpose of offering to issue or issuing a contract or coverage to
an insured or continuing an existing contract or coverage at a rate
in excess of that provided by a filing otherwise applicable.
(f) Except to the extent necessary to meet the provisions of
subdivision (c) of this section, uniformity among insurers, in any
matters within the scope of this section, is neither required nor
prohibited.
(g) Rates made in accordance with this section may be used
subject to the provisions of this article.§33-20B-3a. Rate prohibitions.
Reduced rates charged for certain specialties or risks found
by the commissioner to be predatory, designed to gain market share or otherwise inadequate are prohibited.ARTICLE 20F. PHYSICIANS' MUTUAL INSURANCE COMPANY.§33-20F-1. Short title.
This article shall be known and may be cited as the
"Physicians' Mutual Insurance Company Act".§33-20F-1a. Scope of article.
This article applies only to the physicians' mutual insurance
company created as a novation of the medical professional liability
insurance programs created in article twelve-b, chapter twenty-nine
of this code.

§33-20F-2. Findings and purpose.

(a) The Legislature finds that:
(1) There is a nationwide crisis in the field of medical
liability insurance;
(2) Similar crises have occurred at least three times during
the past three decades;(3) Such crises are part of a naturally recurring cycle of a
hard-market period, when medical professional liability coverage is
difficult to obtain, and a soft-market period, when coverage is
more readily available;
_____(4) Such crises are particularly acute in this state due to
the small size of the insurance market;
_____(5) During a hard-market period, insurers tend to flee this
state, creating a crisis for physicians who are left without professional liability coverage;
_____(3)(6)PhysiciansDuring the current crisis, physicians in
West Virginia find it increasingly difficult, if not impossible, to
obtain medical liability insurance either because coverage is
unavailable or unaffordable;(4)(7) The difficulty or impossibility inof obtaining
medical liability insurance may result in many qualified physicians
leaving the state;(5)(8) Access to quality health care is of utmost importance
to the citizens of West Virginia;(6)(9) A mechanism is needed to remedyprovide an enduring
solution to this recurring medical liability crisis;(7)(10) A physicians' mutual insurance company or a similar
entity has proven to be a successful mechanism in other states for
helping physicians secure insurance and for stabilizing the
insurance market._____(11) There is a substantial public interest in creating a
method to provide a stable medical liability market in this state;
_____(12) The state has attempted to temporarily alleviate the
current medical crisis by the creation of programs to provide
medical liability coverage through the board of risk and insurance
management;
_____(13) The state-run program is a substantial actual and
potential liability to the state;
_____(14) There is substantial public benefit in transferring the
actual and potential liability of the state to the private sector
and creating a stable self-sufficient entity which will be a source
of liability insurance coverage for physicians in this state;
_____(15) A stable, financially viable insurer in the private
sector will provide a continuing source of insurance funds to
compensate victims of medical malpractice; and
_____(16) Because the public will greatly benefit from the
formation of a physicians' mutual insurance company, state efforts
to encourage and support the formation of such an entity, including
providing a low-interest loan for a portion of the entity's initial
capital, is in the clear public interest.
(b) The purpose of this article is to create a mechanism for
the formation of a physicians' mutual insurance company that will
provide:
(1) A means for physicians to obtain medical liability
insurance that is available and affordable; and
(2) Compensation to persons who suffer injuries as a result of
medical professional liability as defined in subsection (d),
section two, article seven-b, chapter fifty-five of this code.§33-20F-3. Definitions.
For purposes of this article, the term:
(a) "Board of medicine" means the West Virginia board of
medicine as provided in section five, article three, chapter thirty of this code.
(b) "Board of osteopathy" means the West Virginia board of
osteopathy as provided in section three, article fourteen, chapter
thirty of this code.
(c) "Commissioner" means the insurance commissioner of West
Virginia as provided in section one, article two, chapter thirty-
three of this code.
(d) "Company" means anythe physicians' mutual insurance
company created pursuant to the terms of this article.(e) "Medical liability insurance" means, for purposes of this
article, all policies previously issued by the board of risk and
insurance management to physicians, physician corporations and
physician-operated clinics pursuant to article twelve-b, chapter
twenty-nine of this code and all policies of insurance subsequently
issued by the physicians' mutual insurance company created under
this article.
_____(e)(f) "Physician" means an individual who is licensed by the
board of medicine or the board of osteopathy to practice medicine
or podiatry in West Virginia.(g) "Transfer date" means the date on which all of the assets,
obligations and liabilities assumed by the board of risk and
insurance management under the provisions of article twelve-b,
chapter twenty-nine of this code are transferred to the company or
any later date selected by the board of risk and insurance management.

§33-20F-4. Authorization for creation of company; requirements and
limitations.

(a) Subject to the provisions of this article, a physicians'
mutual insurance company is hereby authorized tomay be created as
a domestic, private, nonstock, nonprofit corporation. As an
incentive for its creation, anythe company that meets the
requirements set forth in this article may be eligible for funds
from the Legislature in accordance with the provisions of section
seven of this article. AThe company must remain for the duration
of its existence a domestic mutual insurance company owned by its
policyholders and may not be converted into a stock corporation, a
for-profit corporation or any other entity not owned by its
policyholders. The company may not declare any dividend to its
policyholders; sell, assign or transfer substantial assets of the
company; or write coverage outside this state, except for counties
adjoining this state, until after any and all debts owed by the
company to the state have been fully paid.
(b) For the duration of its existence, a company is not and
may not be considered a department, unit, agency, or
instrumentality of the state for any purpose. All debts, claims,
obligations, and liabilities of a company, whenever incurred, shall
be the debts, claims, obligations, and liabilities of the company
only and not of the state or of any department, unit, agency, instrumentality, officer, or employee of the state.
(c) The moneys of athe company are not and may not be
considered part of the general revenue fund of the state. The
debts, claims, obligations, and liabilities of athe company are
not and may not be considered a debt of the state or a pledge of
the credit of the state.
(d) AThe company is not subject to provisions of article
nine-a, chapter six of this code or the provisions of article one,
chapter twenty-nine-b of this code.(e) All premiums collected are subject to the premium tax,
additional premium tax, additional fire and casualty insurance
premium tax and surcharge contained in sections fourteen, fourteen-
a, fourteen-d and thirty-three, article three of this chapter
except that all the taxes paid by the physicians' mutual created in
this article, and all the taxes paid by any carrier on its medical
malpractice line, shall be applied toward restoring the moneys to
the West Virginia tobacco settlement medical trust; thereafter, the
physicians' mutual shall not be subject to the premium taxes and
surcharges set forth in this section: Provided, That, with regard
to the physicians' mutual created in this article, and for the
period of time as the aforesaid loan remains outstanding, the
commissioner may waive such taxes if payment would render the
physicians' mutual insolvent or otherwise financially impaired.§33-20F-5. Governance and organization.(a)(1) The board of risk and insurance management shall
implement the initial formation and organization of the company as
provided by this article and shall serve as provisional directors
until the thirty-first day of December, two thousand three.
_____(2) From the first day of July, two thousand three, until the
thirty-first day of December, two thousand three, the company shall
be governed by a provisional board of directors consisting of the
board of risk and insurance management and five physician
directors, one of whom shall be nominated by the West Virginia
state medical association and one of whom is the dean of the West
Virginia university school of medicine or his or her designated
physician representative. Only physicians who have purchased
medical liability coverage from the board of risk and insurance
management are eligible for selection as the physician
representative on the provisional board of directors. The
chairperson of the board of risk and insurance management shall
serve as the chairperson of the company's provisional board of
directors.
_____(3) From the first day of January, two thousand four, the
company shall be governed by a board of directors selected in
accordance with the company's articles of incorporation and the
provisions of subsection (b) of this section: Provided, That only
physicians who have purchased medical liability coverage from the
board of risk and insurance management are eligible for selection as the physician representative on the initial board of directors.
The members selected shall choose a chairperson by a majority vote.
_____(a)(b)AThe company is to be governed by a board of
directors consisting of eleven directors, as follows:
(1) At least, but not more than, fourFive directors who are
physicians licensed to practice medicine in this state by the board
of medicine or the board of osteopathy, and who represent the
various physician organizations within the state;including at
least one general practitioner and one specialist;
(2) Three directors who have substantial experience as an
officer or employee of a company in the insurance industry; and
(3) At least twoTwo directors with general knowledge and
experience in business management who are officers and employees of
the company and are responsible for the daily management of the
company; and
(4) Two directors with general knowledge and experience in
business management.One director who is a dean of a West Virginia
medical school or his or her designated physician representative.
This director's position shall rotate annually among the dean of
the West Virginia school of medicine, the dean of the Marshall
university Joan C. Edwards school of medicine and the dean of the
West Virginia school of osteopathic medicine. The director shall
serve until such time as the moneys from the West Virginia tobacco
settlement trust have been restored. After the moneys are stored, the director shall be a physician licensed to practice medicine in
this state by the board of medicine or the board of osteopathy.
_____(b)(c) In addition to the eleven directors required by
subsection (a)(b) of this section, the by-laws of a company may
provide for the addition of at least two directors who represent an
entity or institution which lends or otherwise provides funds to
the company.(c) Relating to the directors provided for in subsection (a)
of this section and to the extent possible, the directors are to
reside in different geographical areas of the state. The number of
such directors from any one congressional district in the state may
not exceed the number of directors from any other congressional
district in the state by more than two.
(d) The directors and officers of a company are to be chosen
in accordance with the articles of incorporation and bylaws of the
company. The initial board of directors selected in accordance
with the provisions of subdivision (3), subsection (a) of this
section shall serve for the following terms: (1) Three for four
year terms; (2) three for three year terms; (3) three for two year
terms; and (4) two for one year terms. Thereafter, the directors
shall serve staggered terms of four years. If additional directors
are added to the board as provided in subsection (b)(c) of this
section, the initial term for those directors is four years. No
director chosen pursuant to subsection (a)(b) of this section may serve more than two consecutive terms.
(e) The incorporators are to prepare and file articles of
incorporation and bylaws in accordance with the provisions of this
article and the provisions of chapters thirty-one and thirty-three
of this code.
§33-20F-6. Management and administration of a company. (a) If the board of directors determines that the affairs of
athe company may be administered suitably and efficiently, the
company may enter into a contract with a licensed insurer, licensed
health service plan, insurance service organization, third-party
administrator, insurance brokerage firm or other firm or company
with suitable qualifications and experience to administer some or
all of the affairs of the company, subject to the continuing
direction of the board of directors as required by the articles of
incorporation and bylaws of the company, and the contract.
(b) The company shall file a true copy of the contract with
the commissioner as provided in section twenty-one, article five of
this chapter.§33-20F-7. Initial capital and surplus; special assessment. (a) A portion of the initial capital and surplus of athe
company may be provided by direction of the Legislature, in an
amount, upon terms and conditions, and from sources as may be
determined by the Legislature in its sole discretion. There is
hereby created in the state treasury a special revenue account designated as the "Board of Risk and Insurance Management
Physicians' Mutual Insurance Company Account" solely for the
purpose of receiving any funds appropriated or transferred by the
Legislature pursuant to this section.
(b) In the event that a portion of the initial capital and
surplus of athe company is provided by direction of the
Legislature pursuant to subsection (a) of this section, a special
one-time assessment for the privilege of practicing in West
Virginia mayshall be assessed effective the first day of July, two
thousand three, on every physician licensed by the board of
medicine and every physician licensed by the board of osteopathy to
practice medicine in this state. The amount of assessment may not
exceedshall be one thousand dollars for each licensed physician:
Provided, That faculty physicians shall not be subject to the
assessment. The assessment is to be assessed and collected by the
board of medicine and the board of osteopathy on forms as
prescribed by the board of medicine and the board of osteopathy may
prescriberespective licensing bodies.
(c) If the special assessment is collected pursuant to
subsection (b) of this section, the Legislature hereby dedicates
the entire proceeds of the special assessment to the company. The
board of medicine and the board of osteopathy shall promptly pay
over to the company all amounts collected pursuant to this section
to be used as policyholder surplus for the company.
_____(d) In the event that a portion of the initial capital and
surplus of the company is provided by direction of the Legislature
pursuant to subsection (a) of this section, then all physicians who
purchase insurance from the company who have not paid the
assessment pursuant to subsection (b) of this section shall pay one
thousand dollars as a condition of participation in the physicians'
mutual: Provided, That faculty physicians shall not be subject to
this assessment. This assessment shall be collected by the company
at the time the physician is provided insurance.
_____(e) "Faculty physicians" means physicians including residents
who are employees of Marshall university board of governors, West
Virginia school of osteopathic medicine board of governors or West
Virginia university board of governors.§33-20F-8. Application for license; authority of commissioner.
(a) As soon as practical, athe company desiring to do
businessestablished pursuant to the provisions of this article
shall file its corporate charter and by-laws with the commissioner
and apply for a license to transact insurance in this state.
Notwithstanding any other provision of this code, the commissioner
mustshall act on the documents within fifteen days of the filing
by a company.
(b) In recognition of the medical liability insurance crisis
in this state at the time of enactment of this article, and the
critical need to expedite the initial operation of athe company, the Legislature hereby authorizes the commissioner to review the
documentation submitted by a company and to determine the initial
capital and surplus requirements of a company, notwithstanding the
provisions of section five-b, article three of this chapter. The
commissioner has the sole discretion to determine the capital and
surplus funds of athe company and to monitor the economic
viability of the company during its initial operation and duration
on not less than a monthly basis. AThe company shall furnish the
commissioner with all information and cooperate in all respects as
may be necessary for the commissioner to perform the duties set
forth in this section and in other provisions of this chapter,
including annual audited financial statements as required by
article thirty-three of this chapter and fidelity bond coverage for
each of the directors of the company.
(c) Subject to the provisions of subsection (d) of this
section, the commissioner may waive other requirements imposed on
mutual insurance companies by the provisions of this chapter as the
commissioner determines is necessary to enable athe company to
begin insuring physicians in this state at the earliest possible
date.
(d) Within thirty-sixforty months of the date of the issuance
of its license to transact insurance, athe company mustshall
comply with the capital and surplus requirements set forth in
section five-b, article three of this chapter.and with all other requirements imposed upon mutual insurance companies by the
provisions of this chapter.

§33-20F-9. Kinds of coverage authorized; transfer of policies from
the state board of risk and insurance management; risk
management practices authorized.

(a) Upon approval by the commissioner for a license to
transact insurance in this state, athe company may issue
nonassessable policies of malpractice insurance, as defined in
subdivision (9), subsection (e), section ten, article one of this
chapter, insuring a physician. Additionally, athe company may
issue other types of casualty or liability insurance as may be
approved by the commissioner.
(b) A(1) On the transfer date, the company mustshall accept
the transfer of medical malpracticeany and all medical liability
insurance obligations and risks of existing or in force contracts
of insurance on physicianscovering physicians from the state board
of risk and insurance management pursuant to article twelve-b,
chapter twenty-nine of this code. Subject to approval by the
commissioner, a company may impose reasonable terms and conditions
upon any transfer from the state board of risk and insurance
management, but the terms and conditions may not be designed or
construed to prohibit or unduly restrict such transfers.(2) On the transfer date, the board of risk and insurance
management shall disburse and pay to the company any moneys deposited in the following accounts as reflected on the ledgers of
the board of risk and insurance management:
_____(i) Statewide financial accounting system account number 2368;
_____(ii) The medical liability fund created by section ten,
article twelve-b, chapter twenty-nine of this code; and
_____(iii) The board of risk and insurance management physicians'
mutual insurance company account created under this article, all of
which shall be transferred to the company pursuant to terms of a
surplus note or other loan arrangement satisfactory to the board of
risk and insurance management and the insurance commissioner.
_____(3) On the transfer date, the company shall assume all
responsibility for and defend, indemnify and hold harmless the
board of risk and insurance management and the state with respect
to any and all liabilities and duties arising from the assets and
responsibilities transferred to the company, including, but not
limited to, any duties or responsibilities arising from the
coverage of physicians for medical liability pursuant to article
twelve-b, chapter twenty-nine of this code.
_____(4) The board of risk and insurance management may enter into
such agreements, including loan agreements, with the company that
are necessary or convenient to accomplish the transfers addressed
in this section.
(c) AThe company shall make policies of insurance available
to physicians in this state, regardless of practice type or specialty. Policies issued by athe company to each class of
physicians are to be essentially uniform in terms and conditions of
coverage.
(d) Notwithstanding the provisions of subsections (b) or (c)
of this section, athe company may:
(1) Establish reasonable classifications of physicians,
insured activities, and exposures based on a good faith
determination of relative exposures and hazards among
classifications;
(2) Vary the limits, coverages, exclusions, conditions, and
loss-sharing provisions among classifications;
(3) Establish, for an individual physician within a
classification, reasonable variations in the terms of coverage,
including rates, deductibles and loss-sharing provisions, based on
the insured's prior loss experience and current professional
training and capability; and
(4) RefuseExcept with respect to policies transferred from
the board of risk and insurance management under this section,
refuse to provide insurance coverage for individual physicians
whose prior loss experience or current professional training and
capability are such that the physician represents an unacceptable
risk of loss if coverage is provided.
(e) AThe company shall establish reasonable risk management
and continuing education requirements which policyholders must meet in order to be and remain eligible for coverage.§33-20F-10. Controlling law.
To the extent applicable, and when not in conflict with the
provisions of this article, the provisions of chapters thirty-one
and thirty-three of this code apply to anythe company created
pursuant to the provisions of this article. If a provision of this
article and another provision of this code are in conflict, the
provision of this article controls.§33-20F-11. Liberal construction. This article is enacted to address a situation critical to the
citizens of the state of West Virginia by providing a mechanism for
the speedy and deliberate creation of a company to begin offering
medical liability insurance to physicians in this state at the
earliest possible date, and to accomplish this purpose, this
article mustshall be liberally construed.

ARTICLE 25A. HEALTH MAINTENANCE ORGANIZATION ACT.

§33-25A-24. Scope of provisions; applicability of other laws.
(a) Except as otherwise provided in this article, provisions
of the insurance laws and provisions of hospital or medical service
corporation laws are not applicable to any health maintenance
organization granted a certificate of authority under this article.
The provisions of this article shall not apply to an insurer or
hospital or medical service corporation licensed and regulated
pursuant to the insurance laws or the hospital or medical service corporation laws of this state except with respect to its health
maintenance corporation activities authorized and regulated
pursuant to this article. The provisions of this article may not
apply to an entity properly licensed by a reciprocal state to
provide health care services to employer groups, where residents of
West Virginia are members of an employer group, and the employer
group contract is entered into in the reciprocal state. For
purposes of this subsection, a "reciprocal state" means a state
which physically borders West Virginia and which has subscriber or
enrollee hold harmless requirements substantially similar to those
set out in section seven-a of this article.
(b) Factually accurate advertising or solicitation regarding
the range of services provided, the premiums and copayments
charged, the sites of services and hours of operation and any other
quantifiable, nonprofessional aspects of its operation by a health
maintenance organization granted a certificate of authority, or its
representative may not be construed to violate any provision of law
relating to solicitation or advertising by health professions:
Provided, That nothing contained in this subsection shall be
construed as authorizing any solicitation or advertising which
identifies or refers to any individual provider or makes any
qualitative judgment concerning any provider.
(c) Any health maintenance organization authorized under this
article may not be considered to be practicing medicine and is exempt from the provisions of chapter thirty of this code, relating
to the practice of medicine.
(d) The provisions of sections fifteen and twenty, article
four (general provisions); section nine-a, article two (one-time
assessment); section seventeen, article six (noncomplying forms);
section twenty, article five (borrowing by insurers); article six-c
(guaranteed loss ratio); article seven (assets and liabilities);
article eight (investments); article eight-a (use of clearing
corporations and federal reserve book-entry system); article nine
(administration of deposits); article twelve (agents, brokers,
solicitors and excess line); section fourteen, article fifteen
(individual accident and sickness insurance); section sixteen,
article fifteen (coverage of children); section eighteen, article
fifteen (equal treatment of state agency); section nineteen,
article fifteen (coordination of benefits with medicaid); article
fifteen-b (uniform health care administration act); section three,
article sixteen (required policy provisions); section three-f,
article sixteen (treatment of temporomandibular disorder and
craniomandibular disorder); section eleven, article sixteen
(coverage of children); section thirteen, article sixteen (equal
treatment of state agency); section fourteen, article sixteen
(coordination of benefits with medicaid); article sixteen-a (group
health insurance conversion); article sixteen-d (marketing and rate
practices for small employers); article twenty-five-c (health maintenance organization patient bill of rights); article
twenty-seven (insurance holding company systems); article
thirty-four-a (standards and commissioner's authority for companies
considered to be in hazardous financial condition); article
thirty-five (criminal sanctions for failure to report impairment);
article thirty-seven (managing general agents); article thirty-nine
(disclosure of material transactions); article forty-one
(privileges and immunity); and article forty-two (women's access to
health care) shall be applicable to any health maintenance
organization granted a certificate of authority under this article.
In circumstances where the code provisions made applicable to
health maintenance organizations by this section refer to the
"insurer", the "corporation" or words of similar import, the
language shall be construed to include health maintenance
organizations.
(e) Any long-term care insurance policy delivered or issued
for delivery in this state by a health maintenance organization
shall comply with the provisions of article fifteen-a of this
chapter.ARTICLE 25D. PREPAID LIMITED HEALTH SERVICE ORGANIZATION ACT.§33-25D-26. Scope of provisions; applicability of other laws.
(a) Except as otherwise provided in this article, provisions
of the insurance laws, provisions of hospital, medical, dental or
health service corporation laws and provisions of health maintenance organization laws are not applicable to any prepaid
limited health service organization granted a certificate of
authority under this article. The provisions of this article do
not apply to an insurer, hospital, medical, dental or health
service corporation, or health maintenance organization licensed
and regulated pursuant to the insurance laws, hospital, medical,
dental or health service corporation laws or health maintenance
organization laws of this state except with respect to its prepaid
limited health service corporation activities authorized and
regulated pursuant to this article. The provisions of this article
do not apply to an entity properly licensed by a reciprocal state
to provide a limited health care service to employer groups, where
residents of West Virginia are members of an employer group, and
the employer group contract is entered into in the reciprocal
state. For purposes of this subsection, a "reciprocal state" means
a state which physically borders West Virginia and which has
subscriber or enrollee hold harmless requirements substantially
similar to those set out in section ten of this article.
(b) Factually accurate advertising or solicitation regarding
the range of services provided, the premiums and copayments
charged, the sites of services and hours of operation and any other
quantifiable, nonprofessional aspects of its operation by a prepaid
limited health service organization granted a certificate of
authority, or its representative do not violate any provision of law relating to solicitation or advertising by health professions:
Provided, That nothing contained in this subsection authorizes any
solicitation or advertising which identifies or refers to any
individual provider or makes any qualitative judgment concerning
any provider.
(c) Any prepaid limited health service organization authorized
under this article is not considered to be practicing medicine and
is exempt from the provision of chapter thirty of this code
relating to the practice of medicine.
(d) The provisions of section nine, article two, examinations;
section nine-a, article two, one-time assessment; section thirteen,
article two, hearings; sections fifteen and twenty, article four,
general provisions; section twenty, article five, borrowing by
insurers; section seventeen, article six, noncomplying forms;
article six-c, guaranteed loss ratio; article seven, assets and
liabilities; article eight, investments; article eight-a, use of
clearing corporations and federal reserve book-entry system;
article nine, administration of deposits; article ten,
rehabilitation and liquidation; article twelve, agents, brokers,
solicitors and excess line; section fourteen, article fifteen,
individual accident and sickness insurance; section sixteen,
article fifteen, coverage of children; section eighteen, article
fifteen, equal treatment of state agency; section nineteen, article
fifteen, coordination of benefits with medicaid; article fifteen-b, uniform health care administration act; section three, article
sixteen, required policy provisions; section eleven, article
sixteen, coverage of children; section thirteen, article sixteen,
equal treatment of state agency; section fourteen, article sixteen,
coordination of benefits with medicaid; article sixteen-a, group
health insurance conversion; article sixteen-d, marketing and rate
practices for small employers; article twenty-seven, insurance
holding company systems; article thirty-three, annual audited
financial report; article thirty-four, administrative supervision;
article thirty-four-a, standards and commissioner's authority for
companies considered to be in hazardous financial condition;
article thirty-five, criminal sanctions for failure to report
impairment; article thirty-seven, managing general agents; article
thirty-nine, disclosure of material transactions; and article
forty-one, privileges and immunity, all of this chapter are
applicable to any prepaid limited health service organization
granted a certificate of authority under this article. In
circumstances where the code provisions made applicable to prepaid
limited health service organizations by this section refer to the
"insurer", the "corporation" or words of similar import, the
language includes prepaid limited health service organizations.
(e) Any long-term care insurance policy delivered or issued
for delivery in this state by a prepaid limited health service
organization shall comply with the provisions of article fifteen-a of this chapter.
(f) A prepaid limited health service organization granted a
certificate of authority under this article is exempt from paying
municipal business and occupation taxes on gross income it receives
from its enrollees, or from their employers or others on their
behalf, for health care items or services provided directly or
indirectly by the prepaid limited health service organization.

CHAPTER 38. LIENS.

ARTICLE 10. FEDERAL TAX LIENS; ORDERS AND DECREES IN BANKRUPTCY.
§38-10-4. Exemptions of property in bankruptcy proceedings.
Pursuant to the provisions of §11 U. S. C. 522(b)(1), this
state specifically does not authorize debtors who are domiciled in
this state to exempt the property specified under the provisions of
§11 U. S. C. 522(d).
Any person who files a petition under the federal bankruptcy
law may exempt from property of the estate in a bankruptcy
proceeding the following property:
(a) The debtor's interest, not to exceed twenty-five thousand
dollars in value, in real property or personal property that the
debtor or a dependent of the debtor uses as a residence, in a
cooperative that owns property that the debtor or a dependent of
the debtor uses as a residence or in a burial plot for the debtor
or a dependent of the debtor.: Provided, That when the debtor is
a physician licensed under article three or fourteen, chapter thirty of this code, and has commenced a bankruptcy proceeding in
part due to a verdict or judgment entered in a medical professional
liability action, if the physician has current medical malpractice
insurance for an amount of at least one million dollars for each
occurrence, the debtor physician's interest that is exempt under
this subsection may exceed twenty-five thousand dollars in value
but may not exceed two hundred fifty thousand dollars per
household.
(b) The debtor's interest, not to exceed two thousand four
hundred dollars in value, in one motor vehicle.
(c) The debtor's interest, not to exceed four hundred dollars
in value in any particular item, in household furnishings,
household goods, wearing apparel, appliances, books, animals, crops
or musical instruments that are held primarily for the personal,
family or household use of the debtor or a dependent of the debtor:
Provided, That the total amount of personal property exempted under
this subsection may not exceed eight thousand dollars.
(d) The debtor's interest, not to exceed one thousand dollars
in value, in jewelry held primarily for the personal, family or
household use of the debtor or a dependent of the debtor.
(e) The debtor's interest, not to exceed in value eight
hundred dollars plus any unused amount of the exemption provided
under subsection (a) of this section in any property.
(f) The debtor's interest, not to exceed one thousand five hundred dollars in value, in any implements, professional books or
tools of the trade of the debtor or the trade of a dependent of the
debtor.
(g) Any unmeasured life insurance contract owned by the
debtor, other than a credit life insurance contract.
(h) The debtor's interest, not to exceed in value eight
thousand dollars less any amount of property of the estate
transferred in the manner specified in §11 U. S. C. 542(d), in any
accrued dividend or interest under, or loan value of, any
unmeasured life insurance contract owned by the debtor under which
the insured is the debtor or an individual of whom the debtor is a
dependent.
(i) Professionally prescribed health aids for the debtor or a
dependent of the debtor.
(j) The debtor's right to receive:
(1) A social security benefit, unemployment compensation or a
local public assistance benefit;
(2) A veterans' benefit;
(3) A disability, illness or unemployment benefit;
(4) Alimony, support or separate maintenance, to the extent
reasonably necessary for the support of the debtor and any
dependent of the debtor;
(5) A payment under a stock bonus, pension, profit sharing,
annuity or similar plan or contract on account of illness, disability, death, age or length of service, to the extent
reasonably necessary for the support of the debtor and any
dependent of the debtor, and funds on deposit in an individual
retirement account (IRA), including a simplified employee pension
(SEP) regardless of the amount of funds, unless:
(A) The plan or contract was established by or under the
auspices of an insider that employed the debtor at the time the
debtor's rights under the plan or contract arose;
(B) The payment is on account of age or length of service;
(C) The plan or contract does not qualify under Section
401(a), 403(a), 403(b), 408 or 409 of the Internal Revenue Code of
1986; and
(D) With respect to an individual retirement account,
including a simplified employee pension, the amount is subject to
the excise tax on excess contributions under Section 4973 and/or
Section 4979 of the Internal Revenue Code of 1986, or any successor
provisions, regardless of whether the tax is paid.
(k) The debtor's right to receive or property that is
traceable to:
(1) An award under a crime victim's reparation law;
(2) A payment on account of the wrongful death of an
individual of whom the debtor was a dependent, to the extent
reasonably necessary for the support of the debtor and any
dependent of the debtor;
(3) A payment under a life insurance contract that insured the
life of an individual of whom the debtor was a dependent on the
date of the individual's death, to the extent reasonably necessary
for the support of the debtor and any dependent of the debtor;
(4) A payment, not to exceed fifteen thousand dollars on
account of personal bodily injury, not including pain and suffering
or compensation for actual pecuniary loss, of the debtor or an
individual of whom the debtor is a dependent;
(5) A payment in compensation of loss of future earnings of
the debtor or an individual of whom the debtor is or was a
dependent, to the extent reasonably necessary for the support of
the debtor and any dependent of the debtor;
(6) Payments made to the prepaid tuition trust fund or to the
savings plan trust fund, including earnings, in accordance with
article thirty, chapter eighteen of this code on behalf of any
beneficiary.

CHAPTER 55. ACTIONS, SUITS AND ARBITRATION; JUDICIAL SALE.

ARTICLE 7B. MEDICAL PROFESSIONAL LIABILITY.§55-7B-1. Legislative findings and declaration of purpose. The Legislature hereby finds and declares that the citizens of
this state are entitled to the best medical care and facilities
available and that health care providers offer an essential and
basic service which requires that the public policy of this state
encourage and facilitate the provision of such service to our citizens;
That as in every human endeavor the possibility of injury or
death from negligent conduct commands that protection of the public
served by health care providers be recognized as an important state
interest;
That our system of litigation is an essential component of
this state's interest in providing adequate and reasonable
compensation to those persons who suffer from injury or death as a
result of professional negligence, and any limitation placed on
this system must be balanced with and considerate of the need to
fairly compensate patients who have been injured as a result of
negligent and incompetent acts by health care providers; That liability insurance is a key part of our system of
litigation, affording compensation to the injured while fulfilling
the need and fairness of spreading the cost of the risks of injury;
That a further important component of these protections is the
capacity and willingness of health care providers to monitor and
effectively control their professional competency, so as to protect
the public and insure to the extent possible the highest quality of
care;
That it is the duty and responsibility of the Legislature to
balance the rights of our individual citizens to adequate and
reasonable compensation with the broad public interest in the
provision of services by qualified health care providers and health care facilities who can themselves obtain the protection of
reasonably priced and extensive liability coverage;
That in recent years, the cost of insurance coverage has risen
dramatically while the nature and extent of coverage has
diminished, leaving the health care providers, the health care
facilities, and the injured without the full benefit of
professional liability insurance coverage;
That many of the factors and reasons contributing to the
increased cost and diminished availability of professional
liability insurance arise from the historic inability of this state
to effectively and fairly regulate the insurance industry so as to
guarantee our citizens that rates are appropriate, that purchasers
of insurance coverage are not treated arbitrarily, and that rates
reflect the competency and experience of the insured health care
providers and health care facilities; and_____That the cost of liability insurance coverage has continued to
rise dramatically, resulting in the state's loss and threatened
loss of physicians, which, together with other costs and taxation
incurred by health care providers in this state, have created a
competitive disadvantage in attracting and retaining qualified
physicians and other health care providers.
_____The Legislature further finds that medical liability issues
have reached critical proportions for the state's long-term health
care facilities, as: (1) Medical liability insurance premiums for nursing homes in West Virginia continue to increase and the number
of claims per bed has increased significantly; (2) the cost to the
state medicaid program as a result of such higher premiums has
grown considerably in this period; (3) current medical liability
premium costs for some nursing homes constitute a significant
percentage of the amount of coverage; (4) these high costs are
leading some facilities to consider dropping medical liability
insurance coverage altogether; and (5) the medical liability
insurance crisis for nursing homes may soon result in a reduction
of the number of beds available to citizens in need of long-term
care. Therefore, the purpose of this enactmentarticle is to provide
for a comprehensive resolution of the matters and factors which the
Legislature finds must be addressed to accomplish the goals set
forth abovein this section. In so doing, the Legislature has
determined that reforms in the common law and statutory rights of
our citizens must be enacted together as necessary and mutual
ingredients of the appropriate legislative response relating to:
_____(1) Compensation for injury and death, in;
_____(2) The regulation of rate making and other practices by the
liability insurance industry, including the formation of a
physicians' mutual insurance company and establishment of a fund to
assure adequate compensation to victims of malpractice; and in(3) The authority of medical licensing boards to effectively regulate and discipline the health care providers under such board
must be enacted together as necessary and mutual ingredients of the
appropriate legislative response.§55-7B-2. Definitions._____(a) "Board" means the state board of risk and insurance
management;
_____(b) "Collateral source" means a source of benefits or
advantages for economic loss that the claimant has received from:
_____(1) Any federal or state act, public program or insurance
which provides payments for medical expenses, disability benefits,
including workers' compensation benefits, or other similar
benefits. Benefits payable under the Social Security Act are not
considered payments from collateral sources except for Social
Security disability benefits directly attributable to the medical
injury in question;
_____(2) Any contract or agreement of any group, organization,
partnership or corporation to provide, pay for or reimburse the
cost of medical, hospital, dental, nursing, rehabilitation, therapy
or other health care services or provide similar benefits;
_____(3) Any group accident, sickness or income disability
insurance, any casualty or property insurance (including automobile
and homeowners' insurance) which provides medical benefits, income
replacement or disability coverage, or any other similar insurance
benefits, except life insurance, to the extent that someone other than the insured, including the insured's employer, has paid all or
part of the premium or made an economic contribution on behalf of
the plaintiff; or
_____(4) Any contractual or voluntary wage continuation plan
provided by an employer or otherwise, or any other system intended
to provide wages during a period of disability.
_____(c) "Consumer price index" means the most recent consumer
price index for all consumers published by the United States
department of labor._____(d) "Emergency condition" means any acute traumatic injury or
acute medical condition which, according to standardized criteria
for triage, involves a significant risk of death or the
precipitation of significant complications or disabilities,
impairment of bodily functions, or with respect to a pregnant
woman, a significant risk to the health of the unborn child.
_____(a)(e)"Health care" means any act or treatment performed or
furnished, or which should have been performed or furnished, by any
health care provider for, to or on behalf of a patient during the
patient's medical care, treatment or confinement.(b)(f) "Health care facility" means any clinic, hospital,
nursing home, or extending care facilityassisted living facility,
including personal care home, residential care community and
residential board and care home, or behavioral health care facility
or comprehensive community mental health/mental retardation center, in and licensed by the state of West Virginia and any state
operated institution or clinic providing health care.(c)(g) "Health care provider" means a person, partnership,
corporation, professional limited liability company, health care
facility or institution licensed by, or certified in, this state or
another state, to provide health care or professional health care
services, including, but not limited to, a physician, osteopathic
physician, hospital, dentist, registered or licensed practical
nurse, optometrist, podiatrist, chiropractor, physical therapist or
psychologist, or an officer, employee or agent thereof acting in
the course and scope of such officer's, employee's or agent's
employment._____(h) "Medical injury" means injury or death to a patient
arising or resulting from the rendering of or failure to render
health care.
_____(d)(i) "Medical professional liability" means any liability
for damages resulting from the death or injury of a person for any
tort or breach of contract based on health care services rendered,
or which should have been rendered, by a health care provider or
health care facility to a patient.(g)(j) "Noneconomic loss" means losses, including, but not
limited to, pain, suffering, mental anguish and grief.(e)(k) "Patient" means a natural person who receives or should
have received health care from a licensed health care provider under a contract, expressed or implied.(l) "Plaintiff" means a patient or representative of a patient
who brings an action for medical professional liability under this
article.
_____(f)(m) "Representative" means the spouse, parent, guardian,
trustee, attorney or other legal agent of another.§55-7B-3. Elements of proof.(a) The following are necessary elements of proof that an
injury or death resulted from the failure of a health care provider
to follow the accepted standard of care:(a)(1) The health care provider failed to exercise that
degree of care, skill and learning required or expected of a
reasonable, prudent health care provider in the profession or class
to which the health care provider belongs acting in the same or
similar circumstances; and(b)(2) Such failure was a proximate cause of the injury or
death._____(b) If the plaintiff proceeds on the "loss of chance" theory,
i.e., that the health care provider's failure to follow the
accepted standard of care deprived the patient of a chance of
recovery or increased the risk of harm to the patient which was a
substantial factor in bringing about the ultimate injury to the
patient, the plaintiff must also prove, to a reasonable degree of
medical probability, that following the accepted standard of care would have resulted in a greater than twenty-five percent chance
that the patient would have had an improved recovery or would have
survived.

§55-7B-6. Prerequisites for filing an action against a health care
provider; procedures; sanctions

.
(a) Notwithstanding any other provision of this code, no
person may file a medical professional liability action against any
health care provider without complying with the provisions of this
section.
(b) At least thirty days prior to the filing of a medical
professional liability action against a health care provider, the
claimant shall serve by certified mail, return receipt requested,
a notice of claim on each health care provider the claimant will
join in litigation. The notice of claim shall include a statement
of the theory or theories of liability upon which a cause of action
may be based, and a list of all health care providers and health
care facilities to whom notices of claim are being sent, together
with a screening certificate of merit. The screening certificate
of merit shall be executed under oath by a health care provider
qualified as an expert under the West Virginia rules of evidence
and shall state with particularity: (1) The expert's familiarity
with the applicable standard of care in issue; (2) the expert's
qualifications; (3) the expert's opinion as to how the applicable
standard of care was breached; and (4) the expert's opinion as to how the breach of the applicable standard of care resulted in
injury or death. A separate screening certificate of merit must be
provided for each health care provider against whom a claim is
asserted. The person signing the screening certificate of merit
shall have no financial interest in the underlying claim, but may
participate as an expert witness in any judicial proceeding.
Nothing in this subsection may be construed to limit the
application of rule fifteen15 of the rules of civil procedure.
(c) Notwithstanding any provision of this code, if a claimant
or if represented by counsel, the claimant'shis or her counsel,
believes that no screening certificate of merit is necessary
because the cause of action is based upon a well-established legal
theory of liability which does not require expert testimony
supporting a breach of the applicable standard of care, the
claimant or if represented by counsel, the claimant'shis or her
counsel, shall file a statement specifically setting forth the
basis of the alleged liability of the health care provider in lieu
of a screening certificate of merit.
(d) If a claimant or his or her counsel has insufficient time
to obtain a screening certificate of merit prior to the expiration
of the applicable statute of limitations, the claimant shall comply
with the provisions of subsection (b) of this section except that
the claimant or his or her counsel shall furnish the health care
provider with a statement of intent to provide a screening certificate of merit within sixty days of the date the health care
provider receives the notice of claim.
(e) Any health care provider who receives a notice of claim
pursuant to the provisions of this section mustmay respond, in
writing, to the claimant or his or her counsel within thirty days
of receipt of the claim or within thirty days of receipt of the
screening certificate of merit if the claimant is proceeding
pursuant to the provisions of subsection (d) of this section. The
response may state that the health care provider has a bona fide
defense and the name of the health care provider's counsel, if any. (f) Upon receipt of the notice of claim or of the screening
certificate of merit, if the claimant is proceeding pursuant to the
provisions of subsection (d) of this section, the health care
provider is entitled to pre-litigation mediation before a qualified
mediator upon written demand to the claimant.
(g) If the health care provider demands mediation pursuant to
the provisions of subsection (f) of this section, the mediation
shall be concluded within forty-five days of the date of the
written demand. The mediation shall otherwise be conducted
pursuant to rule 25 of the trial court rules, unless portions of
the rule are clearly not applicable to a mediation conducted prior
to the filing of a complaint or unless the supreme court of appeals
promulgates rules governing mediation prior to the filing of a
complaint. If mediation is conducted, the claimant may depose the health care provider before mediation or take the testimony of the
health care provider during the mediation.
(h) The failure of a health care provider to timely respond to
a notice of claim, in the absence of good cause shown, constitutes
a waiver of the rightto request pre-litigation mediation. Except
as otherwise provided in this subsection, any statute of
limitations applicable to a cause of action against a health care
provider upon whom notice was served for alleged medical
professional liability shall be tolled from the date of the mailing
service of a notice of claim to thirty days following receipt of a
response to the notice of claim, thirty days from the date a
response to the notice of claim would be due, or thirty days from
the receipt by the claimant of written notice from the mediator
that the mediation has not resulted in a settlement of the alleged
claim and that mediation is concluded, whichever last occurs. If
a claimant has sent a notice of claim relating to any injury or
death to more than one health care provider, any one of whom has
demanded mediation, then the statute of limitations shall be tolled
with respect to, and only with respect to, those health care
providers to whom the claimant sent a notice of claim to thirty
days from the receipt of the claimant of written notice from the
mediator that the mediation has not resulted in a settlement of the
alleged claim and that mediation is concluded.
(i) Notwithstanding any other provision of this code, a notice of claim, a health care provider's response to any notice claim, a
screening certificate of merit and the results of any mediation
conducted pursuant to the provisions of this section are
confidential and are not admissible as evidence in any court
proceeding unless the court, upon hearing, determines that failure
to disclose the contents would cause a miscarriage of justice.§55-7B-7. Testimony of expert witness on standard of care.(a) The applicable standard of care and a defendant's failure
to meet saidthe standard of care, if at issue, shall be
established in medical professional liability cases by the
plaintiff by testimony of one or more knowledgeable, competent
expert witnesses if required by the court. Such expertExpert
testimony may only be admitted in evidence if the foundation,
therefor, is first laid establishing that: (a)(1) The opinion is
actually held by the expert witness; (b)(2) the opinion can be
testified to with reasonable medical probability; (c)(3)suchthe
expert witness possesses professional knowledge and expertise
coupled with knowledge of the applicable standard of care to which
his or her expert opinion testimony is addressed; (d)(4)suchthe
expert maintains a current license to practice medicine in one of
the stateswith the appropriate licensing authority of any state of
the United States: Provided, That the expert's license has not
been revoked or suspended in the past year in any state; and (e)
(5)suchthe expert is engaged or qualified in the same or substantially similara medical field as the defendant health care
providerin which the practitioner has experience and/or training
in diagnosing or treating injuries or conditions similar to those
of the patient. If the witness meets all of these qualifications
and devoted, at the time of the medical injury, sixty percent of
his or her professional time annually to the active clinical
practice in his or her medical field or specialty, or to teaching
in his or her medical field or speciality in an accredited
university, there shall be a rebuttable presumption that the expert
is qualified. The parties shall have the opportunity to impeach any
witness' qualifications as an expert. Financial records of an
expert are not discoverable or relevant to providing the amount of
time the expert spends in active practice or teaching in his or her
medical field unless good cause can be shown to the court.(b) Nothing contained in this section may be construed to
limit a trial court's discretion to determine the competency or
lack of competency of a witness on a ground not specifically
enumerated in this section.§55-7B-8. Limit on liability for noneconomic loss.(a) In any medical professional liability action brought
against a health care provider pursuant to this article, the
maximum amount recoverable as compensatory damages for noneconomic
loss shall not exceed one milliontwo hundred fifty thousand
dollars per occurrence, regardless of the number of plaintiffs or the number of defendants or, in the case of wrongful death,
regardless of the number of distributees, except as provided in
subsection (b) of this article.(b) The plaintiff may recover compensatory damages for
noneconomic loss in excess of the limitation described in
subsection (a) of this section, but not in excess of five hundred
thousand dollars for each occurrence, regardless of the number of
plaintiffs or the number of defendants or, in the case of wrongful
death, regardless of the number of distributees, where the damages
for noneconomic losses suffered by the plaintiff were for: (1)
Wrongful death; (2) permanent and substantial physical deformity,
loss of use of a limb or loss of a bodily organ system; or (3)
permanent physical or mental functional injury that permanently
prevents the injured person from being able to independently care
for himself or herself and perform life sustaining activities.
_____(c) On the first of January, two thousand four, and in each
year thereafter, the limitation for compensatory damages contained
in subsections (a) and (b) of this section shall increase to
account for inflation by an amount equal to the consumer price
index published by the United States department of labor, up to
fifty percent of the amounts specified in subsections (b) and (c)
as a limitation of compensatory noneconomic damages.
_____(d) The limitations on noneconomic damages contained in
subsections (a), (b), (c) and (e) of this section are not available to any defendant in an action pursuant to this article which does
not have medical professional liability insurance in the amount of
at least one million dollars per occurrence covering the medical
injury which is the subject of the action.
_____(e) If subsection (a) or (b) of this section, as enacted
during the regular session of the Legislature, two thousand three,
or the application thereof to any person or circumstance, is found
by a court of law to be unconstitutional or otherwise invalid, the
maximum amount recoverable as damages for noneconomic loss in a
professional liability action brought against a health care
provider under this article shall thereafter not exceed one million
dollars.§55-7B-9. Several liability. (a) In the trial of a medical professional liability action
against a health care providerunder this article involving
multiple defendants, the jurytrier of fact shall be required to
report its findings to the court on a form provided by the court
which contains each of the possible verdicts as determined by the
court. Unless otherwise agreed by all the parties to the action,
the jury shall be instructed to answer special interrogatories, or
the court, acting without a jury, shall make findings as to:
_____(1) The total amount of compensatory damages recoverable by
the plaintiffs;
_____(2) The portion of the damages that represents damages for noneconomic loss;
_____(3) The portion of the damages that represents damages for
each category of economic loss;_____(4) The percentage of fault, if any, attributable to each of
the plaintiffs; and
_____(5) The percentage of fault, if any, attributable to each of
the defendants.
(b) In every medical professional liability actionIn
assessing percentages of fault, the trier of fact shall consider
only the fault of the parties in the litigation at the time the
verdict is rendered and shall not consider the fault of any other
person who has settled a claim with the plaintiff arising out of
the same medical injury. Provided, That, upon the creation of the
patient injury compensation fund provided for in article twelve-c,
chapter twenty-nine of this code, or of some other mechanism for
compensating a plaintiff for any amount of economic damages awarded
by the trier of fact which the plaintiff has been unable to
collect, the trier of fact shall, in assessing percentages of
fault, consider the fault of all alleged defendants, including the
fault of any person who has settled a claim with the plaintiff
arising out of the same medical injury.
_____(c) If the trier of fact renders a verdict for the plaintiff,
the court shall make findings as to the total dollar amount awarded
as damages to each plaintiff. The court shall enter judgment of joint and several liability against every defendant which bears
twenty-five percent or more of the negligence attributable to all
defendants. The court shall enter judgment of several, but not
joint, liability against and among all defendants which bear less
than twenty-five percent of the negligence attributable to all
defendantseach defendant in accordance with the percentage of
fault attributed to the defendant by the trier of fact.
_____(c) Each defendant against whom a judgment of joint and
several liability is entered in a medical professional liability
action pursuant to subsection (b) of this section is liable to each
plaintiff for all or any part of the total dollar amount awarded
regardless of the percentage of negligence attributable to him. A
right of contribution exists in favor of each defendant who has
paid to a plaintiff more than the percentage of the total dollar
amount awarded attributable to him relative to the percentage of
negligence attributable to him. The total amount of recovery for
contribution is limited to the amount paid by the defendant to a
plaintiff in excess of the percentage of the total dollar amount
awarded attributable to him relative to the percentage of
negligence attributable to him. No right of contribution exists
against any defendant who entered into a good faith settlement with
the plaintiff prior to the jury's report of its findings to the
court or the court's findings as to the total dollar amount awarded
as damages.(d) Where a right of contribution exists in a medical
professional liability action pursuant to subsection (c) of this
section, the findings of the court or jury as to the percentage of
negligence and liability of the several defendants to the plaintiff
shall be binding among such defendants as determining their rights
of contribution.(d) To determine the amount of judgment to be entered against
each defendant, the court shall first, after adjusting the verdict
as provided in section nine-a of this article, reduce the adjusted
verdict by the amount of any pre-verdict settlement arising out of
the same medical injury. The court shall first then, with regard
to each defendant, multiply the total amount of damages remaining,
with interest, by the percentage of fault attributed to each
defendant by the trier of fact. The resulting amount of damages,
together with any post-judgment interest accrued, shall be the
maximum recoverable against the defendant.
_____(e) Upon the creation of the patient injury compensation fund
provided for in article twelve-c, chapter twenty-nine of this code,
or of some other mechanism for compensating a plaintiff for any
amount of economic damages awarded by the trier of fact which the
plaintiff has been unable to collect, the court shall, in
determining the amount of judgment to be entered against each
defendant, first multiply the total amount of damages, with
interest, recoverable by the plaintiff by the percentage of each defendant's fault and that amount, together with any post-judgment
interest accrued, is the maximum recoverable against said
defendant. Prior to the court's entry of the final judgment order
as to each defendant against whom a verdict was rendered, the court
shall reduce the total jury verdict by any amounts received by a
plaintiff in settlement of the action. When any defendant's
percentage of the verdict exceeds the remaining amounts due
plaintiff after the mandatory reductions, each defendant shall be
liable only for the defendant's pro rata share of the remainder of
the verdict as calculated by the court from the remaining
defendants to the action. The plaintiff's total award may never
exceed the jury's verdict less any statutory or court-ordered
reductions.
_____(f) Nothing in this section is meant to eliminate or diminish
any defenses or immunities which exist as of the effective date of
this section, except as expressly noted in this section.
_____(g) Nothing in this article is meant to preclude a health care
provider from being held responsible for the portion of fault
attributed by the trier of fact to any person acting as the health
care provider's agent or servant or to preclude imposition of fault
otherwise imputable or attributable to the health care provider
under claims of vicarious liability. A health care provider may
not be held vicariously liable for the acts of a nonemployee
pursuant to a theory of ostensible agency. This defense against a claim of ostensible agency does not apply where the alleged agent
or agents do not maintain professional liability insurance covering
the medical injury which is the subject of the action in the
aggregate amount of at least one million dollars.

§55-7B-9a. Reduction in compensatory damages for economic losses
for payments from collateral sources the same injury.

(a) In any action arising after the effective date of this
section, a defendant who has been found liable to the plaintiff for
damages for medical care, rehabilitation services, lost earnings or
other economic losses may present to the court, after the trier of
fact has rendered a verdict, but before entry of judgment, evidence
of payments the plaintiff has received for the same injury from
collateral sources.
(b) In any hearing pursuant to subsection (a) of this section,
the defendant may present evidence of future payments from
collateral sources if the court determines that: (1) There is a
preexisting contractual or statutory obligation on the collateral
source to pay the benefits; (2) the benefits, to a reasonable
degree of certainty, will be paid to the plaintiff for expenses the
trier of fact has determined the plaintiff will incur in the
future; and (3) the amount of the future expenses is readily
reducible to a sum certain.
(c) In the hearing pursuant to subsection (a) of this section,
the plaintiff may present evidence of the value of payments or contributions he or she has made to secure the right to the
benefits paid by the collateral source.
(d) After hearing the evidence presented by the parties, the
court shall make the following findings of fact:
(1) The total amount of damages for economic loss found by the
trier of fact;
(2) The total amount of damages for each category of economic
loss found by the trier of fact;
(3) The total amount of allowable collateral source payments
received or to be received by the plaintiff for the medical injury
which was the subject of the verdict in each category of economic
loss; and
(4) The total amount of any premiums or contributions paid by
the plaintiff in exchange for the collateral source payments in
each category of economic loss found by the trier of fact.
(e) The court shall subtract the total premiums the plaintiff
was found to have paid in each category of economic loss from the
total collateral source benefits the plaintiff received with regard
to that category of economic loss to arrive at the net amount of
collateral source payments.
(f) The court shall then subtract the net amount of collateral
source payments received or to be received by the plaintiff in each
category of economic loss from the total amount of damages awarded
the plaintiff by the trier of fact for that category of economic loss to arrive at the adjusted verdict.
(g) The court shall not reduce the verdict rendered by the
trier of fact in any category of economic loss to reflect:
(1) Amounts paid to or on behalf of the plaintiff which the
collateral source has a right to recover from the plaintiff through
subrogation, lien or reimbursement;
(2) Amounts in excess of benefits actually paid or to be paid
on behalf of the plaintiff by a collateral source in a category of
economic loss;
(3) The proceeds of any individual disability or income
replacement insurance paid for entirely by the plaintiff;
(4) The assets of the plaintiff or the members of the
plaintiff's immediate family; or
(5) A settlement between the plaintiff and another tortfeasor.
(h) After determining the amount of the adjusted verdict, the
court shall enter judgment in accordance with the provisions of
section nine.§55-7B-9b. Limitations on third-party claims.
An action may not be maintained against a health care provider
pursuant to this article by or on behalf of a third-party
nonpatient for rendering or failing to render health care services
to a patient whose subsequent act is a proximate cause of injury or
death to the third party unless the health care provider rendered
or failed to render health care services in willful and wanton or reckless disregard of a foreseeable risk of harm to third persons.
Nothing in this section shall be construed to prevent the personal
representative of a deceased patient from maintaining a wrongful
death action on behalf of such patient pursuant to article seven of
this chapter or to prevent a derivative claim for loss of
consortium arising from injury or death to the patient arising from
the negligence of a health care provider within the meaning of this
article.

55-7B-9c. Limit on liability for treatment of emergency conditions
for which patient is admitted to a designated trauma center

;
exceptions; emergency rules.
(a) In any action brought under this article for injury to or
death of a patient as a result of health care services or
assistance rendered in good faith and necessitated by an emergency
condition for which the patient enters a health care facility
designated by the office of emergency medical services as a trauma
center, including health care services or assistance rendered in
good faith by a licensed EMS agency or an employee of an licensed
EMS agency, the total amount of civil damages recoverable shall not
exceed five hundred thousand dollars, exclusive of interest
computed from the date of judgment.
(b) The limitation of liability in this subsection also
applies to any act or omission of a health care provider in
rendering continued care or assistance in the event that surgery is required as a result of the emergency condition within a reasonable
time after the patient's condition is stabilized.
(c) The limitation on liability provided under subsection (a)
of this section does not apply to any act or omission in rendering
care or assistance which: (1) Occurs after the patient's condition
is stabilized and the patient is capable of receiving medical
treatment as a nonemergency patient; or (2) is unrelated to the
original emergency condition.
(d) In the event that: (1) A physician provides follow-up
care to a patient to whom the physician rendered care or assistance
pursuant to subsection (a) of this section; and (2) a medical
condition arises during the course of the follow-up care that is
directly related to the original emergency condition for which care
or assistance was rendered pursuant to said subsection, there is
rebuttable presumption that the medical condition was the result of
the original emergency condition and that the limitation on
liability provided by said subsection applies with respect to that
medical condition.
(e) There is a rebuttable presumption that a medical condition
which arises in the course of follow-up care provided by the
designated trauma center health care provider who rendered good
faith care or assistance for the original emergency condition is
directly related to the original emergency condition where the
follow-up care is provided within a reasonable time after the patient's admission to the designated trauma center.
(f) The limitation on liability provided under subsection (a)
of this section does not apply where health care or assistance for
the emergency condition is rendered:
(1) In willful and wanton or reckless disregard of a risk of
harm to the patient; or
(2) In clear violation of established written protocols for
triage and emergency health care procedures developed by the office
of emergency medical services in accordance with subsection (e) of
this section. In the event that the office of emergency medical
services has not developed a written triage or emergency medical
protocol by the effective date of this section, the limitation on
liability provided under subsection (a) of this section does not
apply where health care or assistance is rendered under this
section in violation of nationally recognized standards national
standards for triage and emergency health care procedures.
(g) The office of emergency medical services shall, prior to
the effective date of this section, develop a written protocol
specifying recognized and accepted standards for triage and
emergency health care procedures for treatment of emergency
conditions necessitating admission of the patient to a designated
trauma center.
(h) In its discretion, the office of emergency medical
services may grant provisional trauma center status for a period of up to one year to a health care facility applying for designated
trauma center status. A facility given provisional trauma center
status is eligible for the limitation on liability provided in
subsection (a) of this section. If, at the end of the provisional
period, the facility has not been approved by the office of
emergency medical services as a designated trauma center, the
facility will no longer be eligible for the limitation on liability
provided in subsection (a) of this section.
(i) The commissioner of the bureau for public health may grant
an applicant for designated trauma center status a one-time only
extension of provisional trauma center status, upon submission by
the facility of a written request for extension, accompanied by a
detailed explanation and plan of action to fulfill the requirements
for a designated trauma center. If, at the end of the six-month
period, the facility has not been approved by the office of
emergency medical services as a designated trauma center, the
facility will no longer have the protection of the limitation on
liability provided in subsection (a) of this section.
(j) If the office of emergency medical services determines
that a health care facility no longer meets the requirements for a
designated trauma center, it shall revoke the designation, at which
time the limitation on liability established by subsection (a) of
this section shall cease to apply to that health care facility for
services or treatment rendered thereafter.
(k) The Legislature hereby finds that an emergency exists
compelling promulgation of an emergency rule, consistent with the
provisions of this section, governing the criteria for designation
of a facility as a trauma center or provisional trauma center and
implementation of a statewide trauma/emergency care system. The
Legislature therefore directs the secretary of the department of
health and human resources to file, on or before the first day of
July, two thousand three, emergency rules specifying the criteria
for designation of a facility as a trauma center or provisional
trauma center in accordance with nationally accepted and recognized
standards and governing the implementation of a statewide
trauma/emergency care system. The rules governing the statewide
trauma/emergency care system shall include, but not be limited to:
(1) System design, organizational structure and operation,
including integration with the existing emergency medical services
system;
(2) Regulation of facility designation, categorization and
credentialing, including the establishment and collection of
reasonable fees for designation; and
(3) System accountability, including medical review and audit
to assure system quality. Any medical review committees
established to assure system quality shall include all levels of
care, including emergency medical service providers, and both the
review committees and the providers shall qualify for all the rights and protections established in article three-c, chapter
thirty of this code.§55-7B-10. Effective date; applicability of provisions.
(a) The provisions of House Bill 149, enacted during the first
extraordinary session of the Legislature, 1986, shall be effective
at the same time that the provisions of Enrolled Senate Bill 714,
enacted during the Regular session, 1986, become effective, and the
provisions of said House Bill 149 shall be deemed to amend the
provisions of Enrolled Senate Bill 714. The provisions of this
article shall not apply to injuries which occur before the
effective date of this said Enrolled Senate Bill 714.(b) The amendments to this article as provided in House Bill
601, enacted during the sixth extraordinary session of the
Legislature, two thousand one, apply to all causes of action
alleging medical professional liability which are filed on or after
the first day of March, two thousand two.(b) The amendments to this article provided in Enrolled
Committee Substitute for House Bill No. 2122 during the regular
session of the Legislature, two thousand three, apply to all causes
of action alleging medical professional liability which are filed
on or after the first day of July, two thousand three. In the
event that a health care mutual insurance company has not been
licensed to transact business in this state in accordance with the
provisions of article twenty-f, chapter thirty-three of this code on the first day of September, two thousand four, the amendments to
this article provided in Enrolled Committee Substitute for House
Bill No. 2122 during the regular session of the Legislature, two
thousand three, expire and have no further force and effect.
Following extended discussion,
The question being on the adoption of Senator Helmick's
amendment to the bill (Eng. Com. Sub. for H. B. No. 2122), the same
was put and prevailed.
The bill (Eng. Com. Sub. for H. B. No. 2122), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso,
Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2122) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley, Bowman, Caldwell, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: Chafin--1.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2122) passed.
At the request of Senator Kessler, as chair of the Committee
on the Judiciary, and by unanimous consent, the unreported
Judiciary committee amendment to the title of the bill was
withdrawn.
At the request of Senator Helmick, as chair of the Committee
on Finance, unanimous consent being granted, the unreported Finance
committee amendment to the title of the bill was withdrawn.
On motion of Senator Helmick, the following amendment to the
title of the bill was reported by the Clerk and adopted:
On pages one through four, by striking out the title and
substituting therefor a new title, to read as follows:Eng. Com. Sub. for House Bill No. 2122--A Bill to amend and
reenact section two, article eleven-a, chapter four of the code of
West Virginia, one thousand nine hundred thirty-one, as amended; to amend chapter eleven of said code by adding thereto a new article,
designated article thirteen-t; to amend and reenact section
fourteen, article twelve-b, chapter twenty-nine of said code; to
further amend said chapter by adding thereto a new article,
designated article twelve-c; to amend and reenact section fourteen,
article three, chapter thirty of said code; to amend and reenact
section twelve-a, article fourteen of said chapter; to amend
article two, chapter thirty-three of said code by adding thereto a
new section, designated section nine-a; to amend and reenact
section fifteen-a, article four of said chapter; to amend and
reenact section two, article twenty-b of said chapter; to further
amend said article by adding thereto two new sections, designated
sections one-a and three-a; to amend and reenact sections one
through eleven, inclusive, article twenty-f of said chapter; to
further amend said article by adding thereto a new section,
designated section one-a; to amend and reenact section twenty-four,
article twenty-five-a of said chapter; to amend and reenact section
twenty-six, article twenty-five-d of said chapter; to amend and
reenact section four, article ten, chapter thirty-eight of said
code; to amend and reenact sections one, two, three, six, seven,
eight, nine and ten, article seven-b, chapter fifty-five of said
code; and to further amend said article by adding thereto three new
sections, designated sections nine-a, nine-b and nine-c, all
relating to medical professional liability generally; transferring funds from board of risk and insurance management and from tobacco
settlement medical trust fund; providing a personal income tax
credit for physicians based upon payment of certain medical
malpractice liability insurance premiums paid; setting forth
legislative findings and purpose; defining terms; creating tax
credit and providing eligibility; establishing amount of credit;
allowing unused credit to carry forward; providing for forfeiture
of excess credit; providing for the application of the credit;
providing for the computation and application of credit;
authorizing tax commissioner to promulgate legislative rules;
establishing burden of proof relating to claiming the credit;
establishing effective date for credit; providing for termination
of tax credit; terminating authority of board of risk and insurance
management to issue medical professional liability insurance upon
transfer of assets to the physicians' mutual insurance company;
creating board to study the feasibility of and propose a mechanism
for funding the patient injury compensation fund; establishing
term, authority and directives of the board; conditionally
authorizing the board of risk and insurance management to
promulgate legislative and emergency rules; requiring the board of
medicine and the board of osteopathy to take certain disciplinary
actions against physicians and surgeons in certain circumstances;
imposing a one-time assessment on all insurance carriers; requiring
malpractice insurers to offer coverage for all areas of specialization of fields of practice; prohibiting predatory rates
and reduced rates designed to gain market share; providing for the
creation of a physicians' mutual insurance company and the
concomitant novation of certain board of risk and insurance
management medical professional liability insurance programs;
setting forth additional legislative findings and purpose; defining
terms; prohibiting company from taking certain actions; requiring
premium taxes to be applied toward restoring West Virginia tobacco
medical trust fund; exempting company from premium taxes after
moneys have been restored to the tobacco settlement medical trust
fund; waiver of taxes under certain circumstances; providing for
governance and organization of the company; specifying composition
of company's board of directors; creating a special account to
receive funds transferred from the tobacco settlement medical trust
fund; imposing a one-time assessment on certain licensed physicians
for the privilege of practicing in West Virginia; exempting faculty
physicians from assessment; exempting company from certain
requirements imposed on other mutual insurance companies by the
insurance commission; authorizing transfer of funds from special
account and of certain assets, obligations and liabilities of the
board of risk and insurance management to the company on a certain
date; increasing exemption available to certain physician and
surgeon debtors in bankruptcy proceedings; providing additional
legislative findings and purposes relating to medical professional liability; defining terms; adding an element of proof in certain
malpractice claims; altering notice requirements for malpractice
claims; modifying the qualifications for experts who testify in
medical professional liability actions; limiting liability for
certain noneconomic loss; providing a reversion provision;
providing for severability; eliminating joint, but not several,
liability among multiple defendants in medical professional
liability actions; prohibiting consideration of certain third
parties in malpractice cases; eliminating a cause of action based
on ostensible agency in certain circumstances; allowing for
reduction in damage awards for certain collateral source payments
to plaintiffs; providing mechanism for determining collateral
source payments and damages distribution; providing for calculation
methodology for determining award payments; barring actions against
health care providers for certain third-party claims; limiting
civil liability for designated trauma center care; directing the
office of emergency medical services to designate hospitals as
trauma centers and provisional trauma centers; placing limitations
on eligibility for trauma care caps; requiring the office of
emergency medical services to develop a written protocol containing
recognized and accepted standards for triage and emergency health
procedures; authorizing the secretary of the department of health
and human resources to promulgate legislative and emergency rules;
and establishing effective date applicable to all causes of action alleging medical professional liability.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Boley, Bowman,
Caldwell, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: Chafin--1.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2122) takes effect from passage.Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
The Senate proceeded to the tenth order of business. Senate Bill No. 375, Allowing transfer of license to new
business entity in certain cases.
On first reading, coming up in regular order, was read a first
time and ordered to second reading. Senate Bill No. 469, Continuing contractor licensing board.
On first reading, coming up in regular order, was read a first
time and ordered to second reading. Senate Bill No. 470, Continuing board of manufactured housing construction and safety.
On first reading, coming up in regular order, was read a first
time and ordered to second reading. Senate Bill No. 471, Continuing board of pharmacy.
On first reading, coming up in regular order, was read a first
time and ordered to second reading.
On motion of Senator Chafin, the Senate recessed for five
minutes to permit Chris Williamson to address the Senate on behalf
of the Frasure-Singleton Student Legislative Program.
Pending announcement of meetings of standing committees of the
Senate,
On motion of Senator Chafin, the Senate adjourned until
Monday, February 10, 2003, at 11 a.m.